58076 Federal Register / Vol. 88, No. 164 / Friday, August 25, 2023 / Rules and Regulations 

1 84 FR at 69593. 

2 84 FR at 69595. 

comment . . . as a rule of ‘agency 

organization, procedure, or practice.’ ’’ 

Id. at 69587. On March 30, 2020, the 

Board delayed the effective date of the 

2019 Final Rule to May 31, 2020. 

Representation Case Procedures, 85 FR 

17500 (Mar. 30, 2020). 

On May 30, 2020, the United States 

District Court for the District of 

Columbia issued an order in AFL–CIO v. 

NLRB, Civ. No. 20–cv–0675, vacating 

five provisions of the 2019 Final Rule 

and enjoining their implementation. 466 

F. Supp. 3d 68 (D.D.C. 2020). The 

District Court concluded that each of the 

five provisions was substantive, not 

procedural, in nature, and that the 

Board therefore violated the 

Administrative Procedure Act by failing 

to use notice and comment rulemaking. 

Id. at 92. 

On January 17, 2023, the United 

States Court of Appeals for the District 

of Columbia Circuit issued a decision 

and order reversing the District Court as 

to two of the five provisions, agreeing 

with the Board that those provisions 

were procedural in nature and not 

subject to notice and comment 

rulemaking. AFL–CIO v. NLRB, 57 F. 4th 

1023, 1043–1046 (D.C. Cir. 2023). The 

two provisions are: (1) an amendment to 

29 CFR 102.64(a) allowing the parties to 

litigate disputes over unit scope and 

voter eligibility prior to the election; 1

and (2) an amendment to 29 CFR 

102.67(b) instructing Regional Directors 

not to schedule elections before the 20th 

business day after the date of the 

direction of election.2 The D.C. Circuit 

remanded the case to the District Court 

to consider two counts in the complaint 

that challenge those two provisions and 

that remain viable in light of its 

decision. 

Due to the District Court’s injunction, 

these two provisions had never taken 

effect. Accordingly, before the D.C. 

Circuit’s mandate issued on March 13, 

2023 and the District Court’s injunction 

was lifted, the Board changed the 

effective date of the two provisions from 

the original May 31, 2020 effective date 

to September 10, 2023, approximately 

six months from the D.C. Circuit’s 

mandate. Representation Case 

Procedures, 88 FR 14913 (Mar. 10, 

2023). The Board determined that a 

delayed effective date was necessary 

and appropriate, in part, because it was 

considering whether to revise or repeal 

the 2019 Final Rule, including potential 

revisions to the two provisions. Id. 

In a final rule published in this issue 

of the Federal Register, the Board has 

decided to repeal those two provisions, 

as well as other provisions in the 2019 

Final Rule. In light of today’s rule, the 

Board has decided to stay the effective 

date of the two provisions from 

September 10, 2023 to December 26, 

2023, the effective date of the rule 

repealing the two provisions. A further 

stay of these provisions will avoid the 

possible waste of administrative 

resources and public uncertainty if the 

provisions were to go into effect only for 

a short period of time before their 

repeal. Because the two provisions have 

never been in effect, the amendment to 

their effective date merely extends the 

status quo. 

This change in effective date is 

published as a final rule. The Board 

considers this rule to be a procedural 

rule that is exempt from notice and 

public comment, pursuant to 5 U.S.C. 

553(b)(A), because it concerns a rule of 

‘‘agency organization, procedure, or 

practice.’’ 

Dissenting Opinion of Member Kaplan 

Today, my colleagues once again stay 

the implementation of the unit-scopeand-eligibility and 20-days rules, both of 

which were part of the 2019 Final Rule. 

They do so because, in a companion 

final rule issued today, they have 

decided to repeal these two provisions, 

along with other provisions of the 2019 

Final Rule. I disagree with my 

colleagues’ decision to rescind these 

two provisions and with their 

concomitant decision to stay 

implementation for the reasons stated in 

my dissent to their earlier stay, 

Representation Case Procedures, 88 FR 

14913, 14914–14916 (March 10, 2023), 

and my dissent to the companion final 

rule issued today. 

Dated: August 18, 2023. 

Roxanne L. Rothschild, 

Executive Secretary. 

[FR Doc. 2023–18130 Filed 8–24–23; 8:45 am] 

BILLING CODE 7545–01–P 

NATIONAL LABOR RELATIONS 

BOARD 

29 CFR Part 102 

RIN 3142–AA18 

Representation-Case Procedures 

AGENCY: National Labor Relations 

Board. 

ACTION: Direct final rule. 

SUMMARY: The National Labor Relations 

Board has decided to issue this final 

rule for the purpose of carrying out the 

National Labor Relations Act, which 

protects the exercise by workers of full 

freedom of association, selforganization, and designation of 

representatives of their own choosing 

for the purpose of negotiating the terms 

and conditions of their employment or 

other mutual aid or protection. While 

retaining the essentials of existing 

representation case procedures, this rule 

substantially rescinds the amendments 

made by a rule the Board promulgated 

in 2019 (which has been the subject of 

ongoing litigation) and thereby 

substantially returns representation case 

procedures to those that existed 

following the Board’s promulgation of a 

rule concerning representation case 

procedures in 2014 (which was 

uniformly upheld by the federal courts). 

By doing so, this rule effectuates what 

the Board deems to be appropriate 

policy choices that enhance the fair, 

efficient, and expeditious resolution of 

representation cases. 

DATES: This rule is effective December 

26, 2023. 

FOR FURTHER INFORMATION CONTACT: 

Roxanne L. Rothschild, Executive 

Secretary, National Labor Relations 

Board, 1015 Half Street SE, Washington, 

DC 20570–0001, (202) 273–2917 (this is 

not a toll-free number), 1–866–315–6572 

(TTY/TDD). 

SUPPLEMENTARY INFORMATION: 

I. Background on the Rulemaking 

The National Labor Relations Board 

(the Board) administers the National 

Labor Relations Act (the Act) which, 

among other things, governs the 

formation of collective-bargaining 

relationships between employers and 

groups of employees in the private 

sector. Section 7 of the Act, 29 U.S.C. 

157, gives employees the right to 

bargain collectively through 

representatives of their own choosing 

and to refrain from such activity. 

When employees and employers are 

unable to agree whether employees 

should be represented for purposes of 

collective bargaining, Section 9 of the 

Act, 29 U.S.C. 159, gives the Board the 

authority to resolve the question of 

representation. The Supreme Court has 

recognized that ‘‘Congress has entrusted 

the Board with a wide degree of 

discretion in establishing the procedure 

and safeguards necessary to insure the 

fair and free choice of bargaining 

representatives by employees.’’ NLRB v. 

A.J. Tower Co., 329 U.S. 324, 330 (1946). 

‘‘The control of the election proceeding, 

and the determination of the steps 

necessary to conduct that election fairly 

were matters which Congress entrusted 

to the Board alone.’’ NLRB v. Waterman 

Steamship Corp., 309 U.S. 206, 226 

(1940); see Southern Steamship Co. v. 

NLRB, 316 U.S. 31, 37 (1942). 


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1The Board’s binding rules of procedure are 

found primarily in 29 CFR part 102, subpart D. 

Additional rules created by adjudication are found 

throughout the corpus of Board decisional law. 

2NLRB Casehandling Manual (Part Two) 

Representation Proceedings (Sept. 2020). 

3The General Counsel administratively oversees 

the regional directors. 29 U.S.C. 153(d). 

4See Representation—Case Procedures, 79 FR 

74308 (Dec. 15, 2014). 

5 Id. at 74308, 74315. 

6 Id. at 74316–74318. 

7 Information produced from searches in the 

Board’s NxGen case processing software shows that 

in fiscal years 2012, 2013, and 2014—the last three 

years before the 2014 rule was in effect—the 

median number of days between the petition and 

the election in contested cases was 66, 59, and 59, 

respectively, whereas in fiscal years 2016, 2017, 

and 2018—the first three years after the 2014 rule 

was in effect—the median number of days between 

the petition and the election in contested cases was 

35, 36, and 41, respectively. In fiscal years 2012, 

2013, and 2014—the last three years before the 2014 

rule was in effect—the median number of days 

between the petition and the election in cases with 

an election agreement was 37, 37, and 37, 

respectively, whereas in fiscal years 2016, 2017, 

and 2018—the first three years after the 2014 rule 

was in effect—the median number of days between 

the petition and the election in cases with an 

election agreement was 23, 22, and 23, respectively. 

8 In the four full fiscal years that the 2014 rule 

was fully in effect, the percentage of representation 

cases fully resolved within 100 days of a petition’s 

filing was 87.6%, 89.9%, 88.8%, and 90.7%. In the 

four full fiscal years that preceded the 2014 rule 

taking effect, the percentage of representation cases 

fully resolved within 100 days of a petition’s filing 

was 88.1%, 87.4%, 84.5%, and 84.7%. See NLRB 

Performance and Accountability Reports, FYs 

2013–2014, 2016–2019, https://www.nlrb.gov/ 

reports/agency-performance/performance-andaccountability. 9See 79 FR at 74311. 

Representation case procedures are 

set forth in the Act, Board regulations, 

and Board case law.1 The Board’s 

General Counsel has also prepared a 

non-binding Casehandling Manual 

describing representation case 

procedures in detail.2

Section 9 of the Act, 29 U.S.C. 159, 

itself sets forth the basic steps for 

resolving a question of representation. 

They are as follows. First, a petition is 

filed by an employee, a labor 

organization, or an employer. Second, 

the Board investigates the petition and, 

if there is reasonable cause, an 

appropriate hearing is held to determine 

whether a question of representation 

exists, unless the parties agree that an 

election should be conducted and agree 

concerning election details. Hearing 

officers are authorized to conduct preelection hearings but may not make 

recommendations as to the result. Third, 

if there is a question of representation, 

an election by secret ballot is conducted 

in an appropriate unit. Fourth, the 

results of the election are certified. 

The Act also permits the Board to 

delegate its authority to the regional 

directors who lead the Board’s regional 

offices across the country and provides 

that, upon request, the Board may 

review any action of a regional director 

but that such requests do not stay 

regional proceedings unless specifically 

ordered by the Board. 29 U.S.C. 153(b). 

Underlying these basic provisions is 

the essential animating principle that 

representation cases should be resolved 

quickly and fairly. As the Supreme 

Court has recognized, the Act secures a 

‘‘democratic framework’’ in which ‘‘the 

Board must adopt policies and 

promulgate rules and regulations in 

order that employees’ votes may be 

recorded accurately, efficiently and 

speedily.’’ A.J. Tower Co., 329 U.S. at 

331. Thus, the Board, the regional 

directors, and the General Counsel 3

have sought to achieve timely, efficient, 

fair, accurate, uniform, and transparent 

resolution of representation cases. 

To further these goals, in 2014 the 

Board issued a final rule that, while 

retaining the essentials of then-existing 

representation case procedures, 

implemented amendments that removed 

unnecessary barriers to the fair and 

expeditious resolution of representation 

cases.4 The 2014 rule codified best 

practices, simplified representation case 

procedures, made those procedures 

more transparent and uniform across 

regions, and modernized those 

procedures in view of changing 

technology.5

In short, the 2014 rule was intended, 

in significant part, to help the Board 

better achieve its statutory duty to 

accurately, efficiently, and speedily 

resolve questions of representation.6

The evidence is that the 2014 rule 

achieved its goals. The 2014 rule 

reduced the median time from petition 

to election by more than three weeks in 

cases involving a pre-election hearing 

and by two weeks in cases involving an 

election agreement.7 The Board also 

achieved an improvement in the 

percentages of representation cases that 

it closed within 100 days of a petition’s 

filing.8 Those improvements in 

processing representation cases were 

obtained at the same time that: parties 

were permitted to electronically file and 

serve petitions and other documents, 

thereby saving time and money, and 

affording non-filing parties the earliest 

possible notice; Board procedures were 

made more transparent and more 

meaningful information was guaranteed 

to be disseminated at earlier stages of 

proceedings; employees’ Section 7 

rights were afforded more equal 

treatment through the establishment of 

uniform time frames across regional 

offices, hearing dates became more 

predictable, and litigation was made 

more uniform; parties and the Board 

were more often spared the expense and 

inefficiency of litigating and deciding 

issues that are unnecessary to determine 

whether a question of representation 

exists and which may be mooted by 

election results; nonemployer parties 

were able to communicate about 

election issues with voters using 

modern means of communication such 

as email, texts, and cell phones, and 

were less likely to challenge voters out 

of ignorance; notices of election were 

made more informative and more often 

electronically disseminated; and 

employees voting subject to challenge 

were more easily identified, and the 

chances were lessened of their ballots 

being commingled. 

The 2014 rule thus did a successful 

job of furthering the Board’s statutory 

mandate. And it resulted from a careful 

and comprehensive notice and comment 

process. Specifically, the Board, over 

the course of three-and-a-half years, 

considered tens of thousands of public 

comments generated over two separate 

comment periods totaling 141 days, 

including four days of hearings with 

live questioning by Board Members.9 By 

means of that canvassing and 

consideration of the views and 

perspectives of all stakeholders, the 

Board was able to make important 

improvements to its representation case 

procedures. 

The 2014 rule was also subjected to 

legal challenges, which included 

arguments that it went beyond the 

Board’s statutory authority and was 

inconsistent with the Act, the 

Constitution, and/or the Administrative 

Procedure Act (APA). The courts 

uniformly rejected these claims and 

upheld the 2014 rule. See Associated 

Builders & Contractors of Texas, Inc. v. 

NLRB, 826 F.3d 215, 218 (5th Cir. 2016) 

(The ‘‘rule, on its face, does not violate 

the National Labor Relations Act or the 

Administrative Procedure Act[.]’’); 

Chamber of Commerce of the United 

States of America v. NLRB, 118 F. Supp. 

3d 171, 220 (D.D.C. 2015) (rejecting 

claims that the 2014 rule contravenes 

either the Act or the Constitution or is 

arbitrary and capricious or an abuse of 

the Board’s discretion); see also RadNet 

Mgmt. v. NLRB, 992 F.3d 1114, 1121– 

1123 (D.C. Cir. 2021) (rejecting a 

challenge to various 2014 rule 

provisions implicating, among other 

things, the scope of the pre-election 

hearing, the alleged restriction of 

opportunities for employer and 

employee pre-election speech, and the 

alleged arbitrary and capricious 


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10Representation-Case Procedures, 82 FR 58783, 

58784 (Dec. 14, 2017). 

11 Id. 

12See generally Representation-Case Procedures, 

84 FR 69524 (Dec. 18, 2019). 

13 Id. at 69528 fn.12 (‘‘None of the procedural 

changes . . . are premised on the responses to the 

Request for Information; indeed, we would make 

each of these changes irrespective of the existence 

of the Request for Information.’’). 

14The Board at the time acknowledged as much. 

See, e.g., id. at 69528 (‘‘For contested cases, several 

provisions of the final rule will, both individually 

and taken together, result in a lengthening of the 

median time from the filing of a petition to the 

conduct of an election.’’). Moreover, when the 

United States Court of Appeals for the District of 

Columbia Circuit reviewed the 2019 rule, see infra 

fns.23–26 and corresponding text, that court 

recognized the same conscious decision to add 

delay that we have recognized: ‘‘In the extensive 

preamble to the 2019 Rule . . . the Board 

repeatedly acknowledges that its changes will result 

in longer waits before elections relative to the 2014 

Rule.’’ AFL–CIO v. NLRB, 57 F.4th 1023, 1047 (D.C. 

Cir. 2023). 

15As noted below, some of the 2019 amendments 

imposing delay were enjoined in subsequent 

litigation. 

16See, e.g., 84 FR at 69530 (‘‘In sum, the final 

rules will likely result in some lengthening of the 

pre-election period, but the sacrifice of some speed 

will advance fairness, accuracy, transparency, 

uniformity, efficiency, and finality. This is, in our 

considered judgment, a more than worthwhile 

tradeoff.’’). 

17NLRB Performance and Accountability Report, 

FY 2018, https://www.nlrb.gov/reports/agencyperformance/performance-and-accountability; 

NLRB Performance and Accountability Report, FY 

2019, https://www.nlrb.gov/reports/agencyperformance/performance-and-accountability. 

18NLRB Performance and Accountability Report, 

FY 2021, https://www.nlrb.gov/reports/agencyperformance/performance-and-accountability. 

Information produced from searches in the Board’s 

NxGen case processing software shows 85.4% of 

representation cases were resolved within 100 days 

in fiscal year 2022. 

19Following issuance of a decision and direction 

of election or approval of an election agreement, the 

employer is required to furnish the regional director 

and the parties named in the agreement or direction 

a list of the full names, work locations, shifts, job 

classifications, and contact information (including 

home addresses, available personal email addresses, 

and available home and personal cellular telephone 

numbers) of all eligible voters, and, in separate 

sections of that list, the same information for those 

individuals who will be permitted to vote subject 

to challenge. The 2014 rule granted the employer 

2 business days to file and serve the list; the 2019 

rule extended the period to 5 business days. 

Compare 29 CFR 102.62(d), 102.67(l) (Dec. 15, 

2014), with 29 CFR 102.62(d), 102.67(l) (Dec. 18, 

2019). 

20AFL–CIO v. NLRB, 466 F. Supp. 3d 68, 87–100 

(D.D.C. June 7, 2020) (severing, deeming invalid, 

and vacating the five provisions); see AFL–CIO v. 

NLRB, 471 F. Supp. 3d 228, 237–246 (D.D.C. July 

1, 2020) (rejecting additional challenges to the 2019 

rule). 

21 471 F. Supp. 3d at 240–242. 

consideration of irrelevant factors— 

including speed—by the Board in 

implementing the 2014 rule); UPS 

Ground Freight v. NLRB, 921 F.3d 251, 

255–257 (D.C. Cir. 2019) (rejecting a 

challenge to the application of various 

2014 rule provisions including 

scheduling of the pre-election hearing, 

the timing of the employer’s statement 

of position, and the pre-election deferral 

of the voting eligibility of two 

employees in disputed classifications). 

In sum, the 2014 rule furthered the 

Board’s statutory mission and withstood 

legal challenge. 

In 2017, about two-and-a-half years 

after the effective date of the 2014 rule, 

a newly composed Board majority 

issued a Request for Information (RFI) to 

evaluate whether the 2014 rule should 

be retained, retained with 

modifications, or rescinded.10 In issuing 

the RFI, the new Board majority noted 

only that the 2014 rule had ‘‘been in 

effect for more than 2 years,’’ that the 

Board’s composition had changed, and 

that various applications of the rule had 

been litigated in Board cases.11 The new 

Board majority did not refer to any facts, 

data, expertise, or experience suggesting 

a problem with the 2014 rule’s 

implementation or functioning. 

In 2019, the Board issued a final rule 

that substantially frustrated the 2014 

rule’s amendments that were 

responsible for the improvements in the 

Board’s ability to fairly and 

expeditiously resolve questions of 

representation.12 It did so without 

relying on any information received 

from the public in response to the 2017 

RFI; indeed, the 2019 Board expressly 

disclaimed reliance on any of those 

responses.13 It also did so without 

notice and comment. In that 2019 rule, 

the Board consciously chose to add 

additional time to the representation 

case process.14 The 2019 rule imposed 

delay between the filing of the petition 

and the pre-election hearing, between 

the opening of the pre-election hearing 

and issuance of a decision and direction 

of election, between the issuance of the 

decision and direction of election and 

the election, and between the election 

and certification of the results.15 Those 

choices were made despite the Supreme 

Court’s observation that the Board is 

required to adopt and enforce rules to 

process representation cases ‘‘efficiently 

and speedily.’’ A.J. Tower Co., 329 U.S. 

at 331. Although the 2019 Board 

repeatedly stated that the 2019 rule 

would promote fairness, accuracy, 

transparency, uniformity, certainty, and 

finality,16 the 2019 Board did not cite 

data or any other tangible evidence 

demonstrating that the 2014 rule 

impaired those interests or that the 2019 

rule would promote them. The 2019 

rule was, in short, premised on a series 

of abstract policy justifications. 

After a notable decline in 

representation case processing times 

that followed the enactment of the 2014 

rule, there has been an increase in case 

processing times following the 

enactment of the 2019 rule. In fiscal 

years 2018 and 2019—the last full two 

years that the 2014 rule was in effect— 

88.8% and 90.7%, respectively, of 

representation cases were resolved 

within 100 days.17 In fiscal years 2021 

and 2022—the first full two years that 

the 2019 rule was in effect—82.3% and 

85.4%, respectively, of representation 

cases were resolved within 100 days.18

Some of that recent delay is likely 

attributable to the effects of the COVID– 

19 pandemic, which, for instance, 

necessitated increased reliance on mail 

ballot, as opposed to in-person, voting. 

Even so, given the 2019 Board’s 

admission that its rule would lengthen 

the representation case process, we are 

confident that any pandemic-related 

delay in the processing of representation 

cases has been compounded by the 

effects of the 2019 rule. Moreover, the 

delay would have been even greater had 

certain of its provisions not been 

enjoined. 

The 2019 rule was challenged in 

court. The district court vacated five of 

its provisions before they could take 

effect. Those provisions had (1) 

extended the time for an employer to 

furnish the voter list following issuance 

of a decision and direction of an 

election or the approval of an election 

agreement; 19 (2) expanded the scope of 

the pre-election hearing and provided 

that disputes concerning individuals’ 

eligibility to vote or inclusion in an 

appropriate unit normally will be 

litigated at the pre-election hearing and 

resolved by the Regional Director before 

the election; (3) delayed certification of 

election results until any request for 

review has been decided by the Board 

or until the deadline for filing such a 

request has passed; (4) imposed 

restrictions regarding whom parties can 

choose as their election observers; and 

(5) imposed a mandatory delay of at 

least 20 business days between the 

issuance of a direction of election and 

the election itself. The district court 

found that promulgation of those 

specific provisions violated the APA 

because the Board issued them without 

notice and comment.20 The district 

court rejected the challenger’s claim that 

the 2019 rule was arbitrary and 

capricious when considered as a 

whole.21 The district court also rejected 

the challenger’s claims that a provision 

of the 2019 rule that imposed an 

automatic impoundment of ballots 

under certain circumstances when a 

request for review is pending with the 


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22 Id. at 242–245. 23AFL–CIO, 57 F.4th at 1027, 1035–1043. 24 Id. at 1046–1048. 25 Id. at 1035, 1043–1046. 26 Id. at 1048–1050. 27Representation Case Procedures, 88 FR 14908, 

14908–14909 (Mar. 10, 2023). 

28Representation Case Procedures, 88 FR 14913, 

14913–14914 (Mar. 10, 2023). 

29 Id. at 14914. 

30To avoid the possible waste of administrative 

resources and public uncertainty if the two 

provisions that have yet to take effect were to go 

into effect for only a short period of time before 

their repeal, in a separate final rule issued in this 

issue of the Federal Register, the Board has stayed 

the effective date of those two provisions from 

September 10, 2023 to December 26, 2023, the date 

on which the instant rule is effective. 

31See 5 U.S.C. 553(b)(A). 

32Much of the statistical analysis is based on data 

produced from searches in the Board’s NxGen case 

processing database. For provisions of the 2019 rule 

that took effect, the analysis often involves a 

comparison of the last two full fiscal years of data 

before the 2019 rule’s implementation with the first 

two fiscal years of data after the 2019 rule’s 

implementation (i.e., a comparison of data from 

fiscal years 2018 and 2019 with data from fiscal 

years 2021 and 2022). This is so because the 2019 

rule was implemented in the middle of fiscal year 

2020, making it difficult to untangle pre-2019 rule 

data from post-2019 rule data for that year and so 

we have opted not to assess data from that year. 

Additionally, because there are only two full fiscal 

years of data following implementation of the 2019 

rule, we deemed it most rational to compare the 

data from those two years to the data from the two 

fiscal years immediately preceding implementation 

of the 2019 rule. 

For provisions of the 2019 rule that have not yet 

taken effect because of the district court’s order and 

the Board’s subsequent decision to extend the 

effective date, there is obviously no relevant data 

following implementation of the 2019 rule. 

Accordingly, to assess the likely impact that letting 

those provisions take effect would have, the most 

relevant data for the analysis is that from the period 

preceding implementation of the 2014 rule as 

compared to the data from the period following 

implementation of the 2014 rule. That is because 

allowing those provisions from the 2019 to take 

effect would return the Board’s procedures 

essentially to the pre-2014 status quo. And because 

the Board’s NxGen case processing database does 

not include full fiscal year data for years more 

distant than 2013, the pre-2014 rule data is mostly 

limited to fiscal years 2013 and 2014. As there is 

only complete data for those two years prior to the 

implementation of the 2014 rule, we deemed it 

most rational to compare the data from those two 

years to the data from the two fiscal years (2016 and 

2017) immediately following implementation of the 

2014 rule. Also, because the 2014 rule was 

implemented in the middle of fiscal year 2015, 

making it difficult to untangle pre-2014 rule data 

from post-2014 rule data for that year, we have not 

included data from that year in the analysis. 

33Administrative Procedure Act, Legislative 

History, 79th Congress, 1944–46, Sen. Doc. No. 248, 

S. Rep. No. 752, at 225 (1945). 

Board was arbitrary and capricious and 

contrary to law.22

The United States Court of Appeals 

for the District of Columbia Circuit 

affirmed the district court’s ruling in 

part and reversed it in part. Specifically, 

it affirmed the district court’s vacatur of 

the provisions regarding the extended 

time for furnishing the voter list, the 

delayed certification of election results, 

and the restrictions on choice of 

election observers.23 It also affirmed the 

district court’s conclusion that the 2019 

rule was not arbitrary and capricious 

when considered as a whole.24 But it 

reversed the district court’s invalidation 

of the provisions regarding the 

expansion of pre-election litigation and 

the imposition of a mandatory delay 

between the direction of election and 

the election itself.25 In addition, it 

reversed the district court and vacated 

the impoundment provision on the 

ground that automatic impoundment is 

contrary to Section 3(b) of the Act.26

In a final rule issued on March 10, 

2023, the Board, in compliance with the 

D.C. Circuit’s decision, rescinded the 

four provisions of the 2019 rule that the 

court had vacated.27 In another final 

rule issued on March 10, 2023, the 

Board extended to September 10, 2023 

the effective date for the two provisions 

as to which the D.C. Circuit reversed the 

district court’s vacatur.28 The Board did 

so in view of the D.C. Circuit’s remand 

of certain remaining challenges to those 

provisions to the district court and also 

to facilitate its reconsideration of those 

provisions.29

Having now carefully reconsidered 

the two provisions yet to take effect as 

well as the other provisions in effect 

from the 2019 rule, the Board has 

decided to substantially rescind those 

provisions in order to return the Board’s 

representation case procedures 

substantially to those in effect following 

the implementation of the 2014 rule.30

The Board has determined that it can do 

so by direct final rule because the 

provisions that we address concern 

agency procedure and therefore are 

exempt from notice and comment.31

Moreover, although notice and comment 

is often preferable to direct rulemaking 

even when it is not strictly required, in 

this instance we are merely rescinding 

provisions from one direct rulemaking 

(the 2019 rule) to return to provisions 

that resulted from notice and comment 

(the 2014 rule). Further, this rule, unlike 

the 2019 rule, is grounded in analysis of 

the Board’s own data concerning 

representation case procedures.32 This 

rule, by substantially returning the 

Board’s representation case procedures 

to those resulting from the 2014 rule, 

will enable the Board to better fulfill its 

duty to protect employees’ rights by 

fairly, efficiently, and expeditiously 

resolving questions of representation. 

II. List of Amendments 

This list provides a concise statement 

of the ways in which this final rule 

changes or codifies current practice and 

the general reasoning in support of 

those steps. It is not ‘‘an elaborate 

analysis of [the] rules or of the detailed 

considerations upon which they are 

based’’; rather, it ‘‘is designed to enable 

the public to obtain a general idea of the 

purpose of, and a statement of the basic 

justification for, the rules.’’ 33 As this list 

shows, the amendments provide 

targeted solutions to discrete problems. 

All of the matters addressed by each of 

the amendments listed are discussed in 

greater detail below. Moreover, in 

accordance with the discrete character 

of these matters, the Board hereby 

concludes that it would adopt each of 

these amendments individually, or in 

any combination, regardless of whether 

any of the other amendments were 

made. For this reason, the amendments 

are severable. 

1. The pre-election hearing will 

generally be scheduled to open 8 

calendar days from service of the Notice 

of Hearing. Under the 2019 rule, the preelection hearing would generally be 

scheduled to open 14 business days 

from service of the Notice of Hearing. 

Restoring the 8 calendar days timeline 

established by the 2014 rule (which 

represented an effort to codify and make 

uniform preexisting best practices) will 

help the Board to more expeditiously 

resolve questions of representation 

while still allowing adequate time for a 

nonpetitioning party to prepare a 

Statement of Position and otherwise 

prepare and make arrangements before 

the pre-election hearing. 

2. Regional directors have discretion 

to postpone a pre-election hearing for 

up to 2 business days upon request of 

a party showing special circumstances 

and for more than 2 business days upon 

request of a party showing extraordinary 

circumstances. Under the 2019 rule, 

regional directors could postpone a preelection hearing for an unlimited 

amount of time upon request of a party 

showing good cause. Restoring the 

extension provisions established by the 

2014 rule ensures that the pre-election 

hearing will not be unnecessarily 

delayed. 

3. A nonpetitioning party’s Statement 

of Position responding to the petition 

generally will be due to be filed by noon 

the business day before the opening of 

the pre-election hearing. Because the 

pre-election hearing will normally open 

8 calendar days after service of the 

Notice of Hearing, the Statement of 

Position is normally due 7 calendar 

days after service of the Notice of 

Hearing. Under the 2019 rule, a 

nonpetitioning party’s Statement of 

Position was due to be filed 8 business 

days (or 10 calendar days) after service 


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of the Notice of Hearing. Restoring the 

timeline for production of the Statement 

of Position to the timeline established 

by the 2014 rule is consistent with the 

restored shorter timeline between 

service of the Notice of Hearing and 

opening of the pre-election hearing, and 

preserves adequate time for a 

nonpetitioning party to prepare a 

Statement of Position. 

4. Regional directors have discretion 

to postpone the due date for the filing 

of a Statement of Position for up to 2 

business days upon request of a party 

showing special circumstances and for 

more than 2 business days upon request 

of a party showing extraordinary 

circumstances. Under the 2019 rule, 

regional directors could postpone the 

due date for an unlimited amount of 

time upon request of a party showing 

good cause. Restoring the extension 

provisions established by the 2014 rule 

ensures that the Statement of Position 

(and the pre-election hearing) will not 

be unnecessarily delayed. 

5. A petitioner shall respond orally to 

the nonpetitioning party’s Statement of 

Position at the start of the pre-election 

hearing. Under the 2019 rule, a 

petitioner was required to file and serve 

a responsive written Statement of 

Position 3 business days prior to the 

pre-election hearing. Restoring the 2014 

rule’s requirement that the petitioner 

respond orally at the hearing—rather 

than in writing 3 business days in 

advance of the hearing—to the 

nonpetitioning party’s Statement of 

Position eliminates an unnecessary 

barrier to the fair and expeditious 

resolution of representation cases and 

preserves for the petitioner an adequate 

opportunity to respond to the 

nonpetitioning party’s Statement of 

Position, thus continuing to facilitate 

orderly litigation. 

6. An employer has 2 business days 

after service of the Notice of Hearing to 

post the Notice of Petition for Election 

in conspicuous places in the workplace 

and to electronically distribute it to 

employees if the employer customarily 

communicates with its employees 

electronically. Under the 2019 rule, an 

employer had 5 business days for the 

requisite posting and electronic 

distribution. The restored shorter time 

frame ensures that the important 

information contained in the notice will 

be disseminated earlier to employees 

and employers alike, while preserving 

adequate time for employers to achieve 

posting and distribution. 

7. The purpose of the pre-election 

hearing is to determine whether a 

question of representation exists. 

Accordingly, disputes concerning 

individuals’ eligibility to vote or 

inclusion in an appropriate unit 

ordinarily do not need to be litigated or 

resolved prior to an election, and 

regional directors have authority to 

exclude evidence that is not relevant to 

determining whether there is a question 

of representation and thereby avoid 

unnecessary litigation on collateral 

issues that can result in substantial 

waste of resources. Under the 2019 rule, 

individual eligibility and inclusion 

issues were ‘‘normally’’ to be litigated at 

the pre-election hearing and resolved by 

the regional director prior to the 

election. Restoring the 2014 rule 

language more efficiently avoids 

litigating and resolving issues that are 

often mooted by the election results or 

amicably resolved following an election 

and permits fairer and more expeditious 

resolution of representation cases. 

8. Parties may file post-hearing briefs 

with the regional director only with the 

regional director’s special permission 

(following pre-election hearings) or 

hearing officer only with the officer’s 

special permission (following postelection hearings) and within the time 

and addressing only the subjects 

permitted by the regional director or 

hearing officer, respectively. Under the 

2019 rule, parties were entitled to file 

briefs up to 5 business days following 

the close of a pre- or post-election 

hearing, with an extension of an 

additional 10 business days available 

upon a showing of good cause. 

Restoring only permissive post-hearing 

briefing permits regional directors and 

hearing officers adequate flexibility to 

request briefing in the rare complex case 

and eliminates redundant and repetitive 

briefing, and consequent delay, in the 

more commonplace straightforward 

cases. 

9. Regional directors ordinarily 

should specify the election details—(the 

type, date(s), time(s), and location(s) of 

the election and the eligibility period)— 

in the decision and direction of election 

and should ordinarily simultaneously 

transmit the Notice of Election with the 

decision and direction of election. The 

parties will have already taken positions 

with respect to the election details in 

writing prior to the hearing and on the 

record at the hearing. Under the 2019 

rule, regional directors were allowed to 

convey election details in the decision 

and direction of election (and to 

simultaneously transmit the Notice of 

Election with the decision and direction 

of election), but emphasis was placed on 

their discretion to convey them in a 

later-issued Notice of Election. By 

leaving no doubt that the ordinary 

course is to convey election details in 

the decision and direction of election 

and to simultaneously transmit the 

Notice of Election, the restored standard 

eliminates redundant and wasteful postdecision consultation regarding election 

details and, in turn, furthers the 

expeditious resolution of representation 

cases, while leaving regional directors 

free to engage in additional consultation 

where necessary. 

10. Regional directors shall schedule 

elections for ‘‘the earliest date 

practicable’’ after issuance of a decision 

and direction of election. While the 

2019 rule contained the same language, 

it also imposed a 20-business day 

waiting period between the decision 

and direction of election and the 

election that the 2014 rule had 

eliminated. The elimination of the 

mandatory waiting period language will 

reduce delay and eliminate an 

unnecessary barrier to the fair and 

expeditious resolution of questions of 

representation. 

III. General Matters 

Before explaining the specific 

provisions of the final rule, we address 

the general issues of the Board’s 

rulemaking authority; the shortcomings 

of the 2019 rule; and the desirability of 

this final rule to substantially rescind 

the 2019 rule and reinstitute the 2014 

rule. 

A. The Board’s Authority To Promulgate 

Representation Case Procedures 

Congress delegated both general and 

specific rulemaking authority to the 

Board. Generally, Section 6 of the Act, 

29 U.S.C. 156, provides that the Board 

‘‘shall have authority from time to time 

to make, amend, and rescind, in the 

manner prescribed by the 

Administrative Procedure Act . . . such 

rules and regulations as may be 

necessary to carry out the provisions of 

this Act.’’ Specifically, Section 9(c), 29 

U.S.C. 159(c)(1), contemplates rules 

concerning representation case 

procedures, stating that elections will be 

held ‘‘in accordance with such 

regulations as may be prescribed by the 

Board.’’ 

The Supreme Court unanimously held 

in American Hospital Association v. 

NLRB, 499 U.S. 606, 609–610 (1991), 

that the Act authorizes the Board to 

adopt rules governing representation 

case proceedings. The Board’s rules are 

entitled to judicial deference. A.J. 

Tower, 329 U.S. at 330. Representation 

case procedures are uniquely within the 

Board’s expertise and discretion, and 

Congress has made clear that the 

Board’s control of those procedures is 

exclusive and complete. See NLRB v. 

Bell Aerospace Co., 416 U.S. 267, 290 

fn.21 (1974); AFL v. NLRB, 308 U.S. 401, 

409 (1940). ‘‘The control of the election 


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34See Representation-Case Procedures: Voter List 

Contact Information; Absentee Ballots for 

Employees on Military Leave, 85 FR 45553 (July 29, 

2020); Students Working in Connection With Their 

Studies, 84 FR 49691 (Nov. 22, 2019); 

Representation-Case Procedures: Election Bars; 

Proof of Majority Support in Construction Industry 

Collective-Bargaining Relationships, 84 FR 39930 

(Oct. 11, 2019); The Standard for Determining JointEmployer Status, 83 FR 46681 (Sept. 14, 2018). 

35However, the RFI was not the equivalent of 

notice and comment rulemaking. 

36 84 FR at 69528 (caps removed); see also 84 FR 

at 69528 fn.12 (‘‘[W]e are not treating the responses 

to the 2017 Request For Information as notice-andcomment rulemaking.’’). 

37A.J. Tower, 329 U.S. at 331. 

38Boire v. Greyhound Corp., 376 U.S. 473, 479 

(1964). Because of the ‘‘exceptional need for 

expedition,’’ Congress exempted representation 

cases from the requirements of the APA. See Senate 

Committee on the Judiciary, comparative print on 

revision of S. 7, 79th Cong., 1st Sess. 7 (1945); see 

also 5 U.S.C. 554(a)(6). 

39 Magnesium Casting Co., 401 U.S. at 141–142 

(quoting legislative history). 

40NLRB Performance and Accountability Report, 

FY 2018, https://www.nlrb.gov/reports/agencyperformance/performance-and-accountability; 

NLRB Performance and Accountability Report, FY 

2019, https://www.nlrb.gov/reports/agencyperformance/performance-and-accountability. 

41NLRB Performance and Accountability Report, 

FY 2021, https://www.nlrb.gov/reports/agencyContinued 

proceeding, and the determination of 

the steps necessary to conduct that 

election fairly were matters which 

Congress entrusted to the Board alone.’’ 

Waterman Steamship Corp., 309 U.S. at 

226; see also Magnesium Casting Co. v. 

NLRB, 401 U.S. 137, 142 (1971). 

In A.J. Tower, 329 U.S. at 330, the 

Supreme Court recognized that 

‘‘Congress has entrusted the Board with 

a wide degree of discretion in 

establishing the procedure and 

safeguards necessary to insure the fair 

and free choice of bargaining 

representatives by employees.’’ The Act 

enshrines a democratic framework for 

employee choice and, within that 

framework, charges the Board to 

‘‘promulgate rules and regulations in 

order that employees’ votes may be 

recorded accurately, efficiently and 

speedily.’’ Id. at 331. As the Eleventh 

Circuit stated: 

We draw two lessons from A.J. Tower: (1) 

The Board, as an administrative agency, has 

general administrative concerns that 

transcend those of the litigants in a specific 

proceeding; and, (2) the Board can, indeed 

must, weigh these other interests in 

formulating its election standards designed to 

effectuate majority rule. In A.J. Tower, the 

Court recognized ballot secrecy, certainty and 

finality of election results, and minimizing 

dilatory claims as three such competing 

interests. 

Certainteed Corp. v. NLRB, 714 F.2d 

1042, 1053 (11th Cir. 1983). As 

explained above and below, the final 

rule is based upon just such concerns. 

The Act delegated to the Board the 

authority to craft its procedures in a 

manner that, in the Board’s expert 

judgment, will best serve the purposes 

of the Act. Here, the Board is acting 

pursuant to its clear regulatory authority 

to change its own representation case 

procedures in a manner that will better 

serve the purposes of the Act. 

B. The 2019 Rule and the Desirability of 

This Final Rule 

The 2019 rule was promulgated 

without notice and comment, in 

contrast to the 2014 rule. We believe 

that the process that culminated in the 

2014 rule was superior, even if, aside 

from the provisions vacated by the D.C. 

Circuit, notice and comment was not 

legally required. In any case, in our 

policy judgment, the 2014 rule was 

superior to the 2019 rule. The 

shortcomings that mark the 2019 rule 

and the improvements made by 

reverting to the 2014 rule are largely 

addressed in the provision-specific 

discussion below but are previewed 

here. 

1. The 2019 Board’s Process 

As explained, the Board’s 2014 rule, 

to which we return in this rulemaking, 

was the product of extensive notice and 

comment. The 2019 rule, which 

significantly altered the 2014 rule, was 

not. Even if notice and comment was 

not required by the APA for most 

provisions addressed in the 2014 and 

2019 rules, it provided useful guidance 

in crafting of the 2014 rule. In our view, 

because the 2019 Board was 

contemplating substantially altering 

important representation case 

procedures that were the product of 

notice and comment, it may have been 

preferable if the Board had sought and 

relied on the input of relevant 

stakeholders, including workers, 

unions, employers, and legal 

practitioners, as the Board did in 2014. 

The 2019 Board seemed to recognize 

the value of gathering the perspectives 

of stakeholders in at least some 

instances. Indeed, the same majority 

invited notice and comment in four 

other rulemaking proceedings.34 And 

with respect to the 2014 rule 

specifically, in 2017—immediately after 

the Board’s composition had changed— 

the Board issued its RFI seeking public 

input as to whether it should retain, 

rescind, or change the 2014 rule. In 

issuing the RFI, the Board seemingly 

recognized the merit of inviting public 

input from the stakeholders whose 

perspectives were considered in the 

process that yielded the 2014 rule.35 But 

when the responses to the RFI did not 

provide data, reliable evidence, or 

sound policy rationales to justify 

departure from the 2014 rule, the 2019 

Board decided to expressly disclaim 

reliance on the responses to the RFI and 

proceed with implementing its own rule 

‘‘without notice and comment.’’ 36

The 2019 Board also did not assess 

empirical data that the agency 

maintains. The 2019 Board conducted 

no analysis of more than four years of 

available agency data and records that 

provide insight into the impact of the 

2014 rule, and it did not invoke its own 

experience administering the 2014 rule. 

Instead, the 2019 Board simply asserted 

that it was making changes to promote 

‘‘fairness, accuracy, transparency, 

uniformity, efficiency, certainty, and 

finality’’ even though there was no 

data—empirical, anecdotal, experiential, 

or otherwise—substantiating its 

conclusion that the 2014 rule impaired 

those interests or that its rule would 

promote them. 

2. The 2019 Rule’s Impact and the 

Desirability of This Final Rule 

Section 9 of the Act is animated by 

the principle that representation cases 

should be resolved quickly and fairly. 

As the Supreme Court has recognized, 

the Board ‘‘must’’ adopt policies and 

promulgate rules and regulations in 

order that ‘‘employees’ votes may be 

recorded accurately, efficiently and 

speedily.’’ 37 The Supreme Court noted, 

in discussing Section 9(d), that the 

policy in favor of speedy representation 

procedures ‘‘was reaffirmed in 1947, at 

the time that the Taft-Hartley 

amendments were under 

consideration,’’ and that Senator Taft 

stated that the Act should not ‘‘permit 

dilatory tactics in representation 

proceedings.’’ 38 In addition, the 

purpose of Congress in 1959 in 

permitting delegation of representation 

case proceedings to regional directors 

under Section 3(b) was to ‘‘ ‘speed the 

work of the Board.’ ’’ 39

There is no precedent for the 

deliberate decision of the 2019 Board to 

lengthen, rather than shorten, the 

representation case process. Even with 

certain of the 2019 rule’s delay-causing 

provisions enjoined by court order, the 

data tends to show that it still has 

caused substantial delay. For instance, 

in the last two full years that the 2014 

rule was fully in effect, 88.8% and 

90.7% of representation cases were 

resolved within 100 days,40 whereas in 

the first two full years that the 2019 rule 

was in effect, only 82.3% and 85.4% of 

representation cases were resolved 

within 100 days.41 Similarly, 


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performance/performance-and-accountability. 

Information produced from searches in the Board’s 

NxGen case processing software shows 85.4% of 

representation cases were resolved within 100 days 

in fiscal year 2022. 

42 84 FR at 69530. 

43 Information produced from searches in the 

Board’s NxGen case processing software shows that 

in fiscal years 2018 and 2019, which are the last 

two full years the 2014 rule was in effect, there were 

2 reversals of regional directors’ decisions and 

directions of elections as compared to 2,574 total 

elections, amounting to a reversal in 0.07% of all 

elections. In fiscal years 2021 and 2022, which are 

the first two full years the 2019 rule was in effect, 

there were 5 reversals of regional directors’ 

decisions and directions of election as compared to 

2,838 total elections, amounting to a reversal in 

0.18% of all elections. Accordingly, under both the 

2014 rule and the 2019 rule, a regional director’s 

decision and direction of election was reversed in 

about 0.1% to 0.2% of cases that have an election. 

44 Information produced from searches in the 

Board’s NxGen case processing software shows that 

in fiscal years 2018 and 2019, which are the last 

two full years the 2014 rule was in effect, there were 

172 cases involving election objections or 

determinative challenges as compared to 2,574 total 

elections, amounting to election objections or 

determinative challenges in 6.68% of all elections. 

In fiscal years 2021 and 2022, which are the first 

two full years the 2019 rule was in effect, there were 

177 cases involving election objections or 

determinative challenges as compared to 2,838 total 

elections, amounting to election objections or 

determinative challenges in 6.24% of all elections. 

Accordingly, under both the 2014 rule and the 2019 

rule, objections or determinative challenges were 

filed in about 6.5% of cases that have an election. 

45 Information produced from searches in the 

Board’s NxGen case processing software shows that 

in fiscal years 2018 and 2019, which are the last 

two full years the 2014 rule was in effect, there were 

59 cases with a rerun election, as compared to 2,574 

total elections, amounting to rerun elections in 

2.29% of all elections. In fiscal years 2021 and 

2022, which are the first two full years the 2019 

rule was in effect, there were 49 cases with a rerun 

election as compared to 2,838 total elections, 

amounting to rerun elections in 1.73% of all 

elections. Accordingly, under both the 2014 rule 

and the 2019 rule, there was a rerun election in 

about 2% of cases that have an election. 

46See also AFL–CIO, 57 F.4th at 1034–1046. 

47This rule does not rescind a small number of 

technical amendments made by the 2019 rule that 

are not inconsistent with the policy objectives of 

this rule. Those amendments included standardized 

formatting requirements for requests for review; 

explicit authorization for oppositions in response to 

requests for review; explicit authorization for 

replies in support of requests for review only upon 

special leave of the Board; prohibition of piecemeal 

requests for review; clarification of final disposition 

for the purposes of filing a request for review; 

incidental changes in terminology; and updates to 

internal cross-references in the Board’s regulations. 

Those amendments also included conversion of all 

time periods in subpart D to business days; this rule 

largely retains that conversion, with the exception 

of the 8 calendar day timeline from the filing of the 

petition to the pre-election hearing discussed 

immediately below. 

information produced from searches in 

the Board’s NxGen case processing 

software show that in each of the last 

two full years that the 2014 rule was 

fully in effect there was a median of 23 

days from the filing of the petition to the 

holding of the election; whereas in the 

first two full years that the 2019 rule 

was in effect, there was a median of 34 

and 37 days from the filing of the 

petition to the holding of the election. 

Even if some increased delay was 

caused by the COVID–19 pandemic, we 

are confident that the 2019 rule’s delaycausing provisions—which the 2019 

Board acknowledged would cause 

delay—contributed to the increased 

delay. 

The 2019 Board was willing to accept 

the delay that it knew its amendments 

would cause because it said those 

amendments would ‘‘advance fairness, 

accuracy, transparency, uniformity, 

efficiency, and finality,’’ which it 

characterized as a ‘‘worthwhile 

tradeoff.’’ 42 But, as explained, the Board 

did not cite any evidence for its claims; 

instead, it just speculated that its 

amendments would advance those 

interests. Nor does there seem to be 

evidence that increased delay 

apparently attributable to the 2019 rule 

has been offset by meaningful 

improvements in furthering the interests 

cited by the Board. Rather, the evidence 

would seem to be to the contrary. For 

instance, if the representation case 

process were meaningfully more certain, 

final, fair, accurate, transparent, and 

uniform, then arguably a substantially 

smaller portion of representation cases 

should involve Board reversals of 

regional director decisions, postelection objections and challenges, and 

rerun elections. But that is not what has 

happened since the 2019 rule took 

effect. The portion of representation 

cases involving Board reversals of 

regional directors’ decisions and 

directions of elections,43 post-election 

objections and determinative 

challenges,44 and rerun elections 45 has 

remained largely stable. Those outcomes 

would seem to support the conclusion 

that representation cases are, at best, no 

more fair, accurate, transparent, 

uniform, certain, and final than they 

were under the 2014 rule. 

The 2019 rule, by design, 

contemplated a slower representation 

case process, notwithstanding the 

Board’s statutory mission to speedily 

and efficiently process representation 

cases. In the absence of any evidence 

that the 2019 rule has had, or might 

reasonably be expected to have, 

countervailing policy benefits that 

outweighed the clear potential for 

increased delay, and based on our 

determination that the policies of the 

Act are better served by the 2014 rule, 

the Board has decided to promulgate the 

instant rule that substantially rescinds 

the 2019 rule and reinstates the 2014 

rule. Doing so will enhance the speed 

and efficiency with which the Board 

processes representation cases with, as 

noted in the previous paragraph, no 

discernible diminishment of fairness, 

accuracy, transparency, uniformity, and 

finality. The Board makes this change, 

‘‘conscious’’ of its ‘‘change of course,’’ 

because ‘‘there are good reasons’’ for 

returning to the 2014 rule, and based on 

those reasons, we believe that that rule 

does a better job of advancing the 

purposes of the Act than the 2019 rule. 

See FCC v. Fox Television Stations, Inc., 

556 U.S. 502, 515 (2009). 

The provisions of the Board’s 

representation case procedures that we 

address in this rule are all procedural as 

defined in 5 U.S.C. 553(b)(A) and so this 

rule is exempt from notice and 

comment.46 Moreover, the benefit of 

notice and comment is reduced under 

these circumstances because the Board 

is returning its representation case 

procedures essentially to those that 

applied immediately prior to the 2019 

rule, and those pre-2019 final rule 

procedures were themselves the product 

of notice and comment rulemaking. The 

substantial delay, cost, and inefficiency 

that would result from another round of 

notice and comment is not sensible 

given that this rulemaking is grounded 

in the same fundamental perspectives 

and viewpoints gathered and considered 

in formulation of the 2014 rule to which 

the Board now substantially returns. 

Moreover, this rule, unlike the 2019 

rule, is further grounded in analysis of 

the Board’s own representation case 

processing data and experience that 

support a return in substantial part to 

the 2014 rule.47 We see no compelling 

reason to take the 2019 rule—issued 

without notice and comment—as the 

starting point for a new notice and 

comment process instead of proceeding 

as we do here: returning to the 2014 

rule. 

IV. Explanation of Changes to 

Particular Sections 

Part 102, Subpart D—Procedure Under 

Section 9(c) of the Act for the 

Determination of Questions Concerning 

Representation of Employees and for 

Clarification of Bargaining Units and for 

Amendment of Certifications Under 

Section 9(b) of the Act 

102.63 Investigation of Petition by 

Regional Director; Notice of Hearing; 

Service of Notice; Notice of Petition for 

Election; Statement of Position; 

Withdrawal of Notice of Hearing 

A. Scheduling of Pre-Election Hearing 

Unless the parties enter into an 

election agreement, the Board may not 

conduct an election without first 

holding a pre-election hearing to 


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48 29 CFR 102.63(a)(1) (Dec. 15, 2014). Prior to the 

2014 rule, the Board’s regulations did not specify 

when pre-election hearings would open. Instead, 

the regulations merely indicated that hearings 

would open at a time and place designated by the 

regional director. See 29 CFR 102.63(a) (2011). 49 79 FR at 74309, 74370–74379, 74424 

(explaining why hearing time frame provides due 

notice). Although our dissenting colleague casts 

aspersions on Croft Metals as persuasive precedent, 

he ultimately relies on it himself—as he must in the 

absence of a subsequent decision overruling it—in 

concluding that ‘‘the 2019 Rule is consistent with 

Croft Metals.’’ We agree. But so is this rule in 

returning to the default 8-day timeline for noticing 

pre-election hearings. 

50Our dissenting colleague takes issue with our 

reference to ‘‘best practices.’’ His criticisms are 

misguided. As explained in the 2014 rule, a ‘‘1997 

Report of the Best Practices Committee provided 

that hearings should open between 10 to 14 days 

of the petition’s filing.’’ 79 FR at 74373. If, in 1997, 

it took several days for the Notice of Hearing to be 

served after the petition’s filing, then scheduling a 

pre-election hearing for 8 calendar days after the 

service of the Notice of Hearing would render the 

contemporary timing roughly equivalent to the 

timing described by the Best Practices Committee’s 

1997 Report. Moreover, a ‘‘model opening letter in 

1999’’—and a model letter is an attempt to convey 

best practices—‘‘indicated that the hearing should 

open no later than 7 days after service of the 

notice.’’ Id. 

51 79 FR at 74309, 74370–74376, 74424. 

Reviewing courts rejected every challenge to the 

hearing scheduling provisions contained in the 

2014 rule. See UPS, 921 F.3d at 256 (‘‘[A]n eightday notice accords with both the Due Process 

Clause and [the employer’s] statutory right to an 

‘appropriate’ hearing[.]’’); ABC of Texas, 826 F.3d 

at 220, 222–223 (‘‘[T]he rule changes to the preelection hearing did not exceed the bounds of the 

Board’s statutory authority[.]’’); Chamber, 118 F. 

Supp. 3d at 177, 205–206 (rejecting due process 

challenge to hearing scheduling provision). 

52 29 CFR 102.63(a)(1) (Dec. 18, 2019). 

53 84 FR at 69533; see also id. at 69534 

(acknowledging that ‘‘modifications’’ to the 

Statement of Position requirements ‘‘account for the 

14-business-day timeline between the notice of 

hearing and the start of the pre-election hearing’’). 

54See infra C. Due Date for Nonpetitioning Party’s 

Statement of Position; E. Responsive Statement of 

Position. 

55Our dissenting colleague admits that it is 

‘‘obvious’’ that reverting to the 8-calendar day time 

frame would expedite the representation case 

process, but he then says that relying on that factor 

instead of ‘‘weighing carefully the other important 

interests at stake[ ]is hardly a reasoned basis’’ for 

the reversion. That contention ignores the relative 

importance of the statutory interest in the quick 

resolution of representation cases. See A.J. Tower 

Co., 329 U.S. at 331 (‘‘[T]he Board must adopt 

policies and promulgate rules and regulations in 

order that employees’ votes may be recorded 

accurately, efficiently and speedily.’’). It further 

ignores the balance of our discussion, which 

carefully considers and discounts the various other 

non-statutory interests identified by the 2019 Board 

in setting a lengthier time period for opening the 

pre-election hearing. 

56 84 FR at 69533. 

57See 79 FR at 74372, 74378–74379. 

58See id. at 74320–74321, 74372, 74378–74379. 

59Further, the timeline enables the regional 

director to grant postponements in appropriate 

cases. See id. at 74371, 74424; 29 CFR 102.63(a)(1) 

(Dec. 15, 2014). 

We reject our dissenting colleague’s contention 

that our assessment of policy priorities in setting 

the time frame for opening of the pre-election 

hearing amounts to a denial of due process. He 

quotes one generalized statement of due process 

requirements but then does not explain why the 

time frame we set does not satisfy those 

requirements. He also fails to meaningfully engage 

with the relevant legal discussion on this issue in 

the 2014 rule. See 79 FR at 74371–74373. Moreover, 

as noted in fn.51, the courts have uniformly rejected 

due process challenges to the 2014 hearing 

scheduling provisions. 

60 84 FR at 69533. 

61 Information reported in the Agency’s NxGen 

case processing software shows: election agreement 

rates of 91.1% in each of fiscal years 2013 and 2014, 

the full fiscal years immediately preceding the 

implementation of the 2014 rule; election 

agreement rates of 91.7%, 91.7%, 90.6%, and 

91.3% in fiscal years 2016, 2017, 2018, and 2019, 

the full fiscal years immediately following the 

implementation of the 2014 rule; and election 

agreement rates of 80.7% and 83.7% in fiscal years 

2021 and 2022, the full fiscal years immediately 

following the implementation of the 2019 rule. 

determine whether a question of 

representation exists. See 29 U.S.C. 

159(c)(1), (4). Thus, the timing of the 

pre-election hearing affects the timing of 

the election. The longer it takes to open 

the pre-election hearing, the longer it 

takes to determine whether a question of 

representation exists, and, ultimately, 

the longer it takes to conduct the 

election. 

The 2014 rule provided that a preelection hearing would commence 8 

calendar days from the date of the 

service of the Notice of Hearing, except 

in cases presenting unusually complex 

issues.48 That timeline was consistent 

with Croft Metals, Inc., 337 NLRB 688 

(2002), where the Board had concluded 

that 5 business days’ notice of preelection hearings was sufficient.49 It also 

codified best practices in some regions, 

where hearings were routinely 

scheduled to open in 7 days to 10 

days.50 The 2014 rule’s hearing timeline 

helped to expeditiously resolve 

questions of representation, while 

allowing adequate time for a 

nonpetitioning party to prepare for the 

hearing and to file a Statement of 

Position.51

The 2019 rule, however, more than 

doubled the applicable time frame, 

delaying the opening of the pre-election 

hearing from 8 calendar days to 14 

business days from service of the Notice 

of Hearing.52 In our considered 

judgment, the reasons offered by the 

2019 Board do not justify delaying the 

opening of the pre-election hearing, 

which necessarily delays resolution of 

the question of representation. 

The 2019 Board provided no 

empirical basis for concluding that the 

2014 rule time frame for the opening of 

the pre-election hearing needed 

changing. Rather, the 2019 Board 

principally asserted that revision of the 

timeline was ‘‘essentially dictated’’ by 

the other changes that the 2019 Board 

had voluntarily decided to make to the 

Statement of Position provisions of the 

2014 rule.53 But because those changes 

to the Statement of Position provisions 

are rescinded for the reasons explained 

in detail elsewhere,54 the principal 

rationale for the extended hearing 

timeline no longer exists. Accordingly, 

this final rule reverts to the 8-calendar 

day time frame for the opening of the 

pre-election hearing to further expedite 

the resolution of questions concerning 

representation.55

The 2019 Board’s secondary 

rationales for extending the timeline are 

not compelling. The assertion that a 

longer timeline would allow parties to 

better deal with ‘‘preliminary 

arrangements,’’ like retaining counsel, 

identifying and preparing witnesses, 

gathering information, and arranging 

any travel, and other ‘‘procedural 

obligations,’’ 56 was not grounded in 

evidence that parties were having 

trouble addressing these issues within 8 

calendar days’ notice of the opening of 

the pre-election hearing. Part of the 

reason the 2019 Board could not point 

to evidence of an actual problem is 

likely because employers have the 

necessary information to prepare for 

pre-election hearings before notices of 

hearings ever issue 57 and are regularly 

aware of union organizing campaigns 

even before the filing of petitions.58 So 

the 8-calendar day timeline is adequate 

for parties to retain counsel and make 

arrangements and prepare for hearings. 

Even assuming the 8-calendar day time 

frame causes some inconvenience, we 

believe that the statutory interest in 

expeditiously resolving questions of 

representation outweighs the nonstatutory interest in facilitating parties’ 

hearing preparation.59

The 2019 Board also speculated that 

additional time would give parties 

‘‘better opportunity to reach election 

agreements.’’ 60 The Board cited no 

evidence for this view, and since the 

2019 rule took effect there is no 

evidence that parties are more 

frequently reaching election agreements 

than under the 2014 rule. Prior to 2014, 

when hearings were scheduled to open 

in more than 8 calendar days in some 

regions, parties consistently entered into 

election agreements in about 90% of 

representation cases. When the 2014 

rule’s 8-calendar day timeline was in 

effect, parties still consistently entered 

into election agreements in about 90% 

of representation cases. In the two full 

fiscal years since the 2019 rule’s 14- 

business day timeline has taken effect, 

however, parties entered into election 

agreements in only 80.7% and 83.7% of 

representation cases.61 It may be that the 

current downward trend is partly 


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62 84 FR at 69533. 

63 Id. at 69533 & fn.45. 

64 79 FR at 74371; 29 CFR 102.63(a)(1) (Dec. 15, 

2014). 

65 29 CFR 102.63(a)(1) (Dec. 18, 2019). 

66 84 FR at 69534. 

67 79 FR at 74371. 

68 29 CFR 102.63(b) (Dec. 15, 2014). 

69 79 FR at 74371–74379. 

70 29 CFR 102.63(b)(1)(i)(A). 

71See supra fn.57. 

72See supra fn.58. 

73Moreover, the rule provides for extensions 

where appropriate. 29 CFR 102.63(b) (Dec. 15, 

2014). We further note that the courts rejected every 

challenge to the 2014 rule’s 7-day time frame for 

completion of the statement of position. See 

Chamber, 118 F. Supp. 3d at 205 & fn.24 (rejecting 

plaintiff’s argument that ‘‘the burdensome 

requirement of the Statement of Position violates 

[its] due process rights by not providing it sufficient 

time to respond’’); UPS, 921 F.3d at 255–257 

(rejecting a challenge to the application of various 

2014 rule provisions including the timing of the 

employer’s Statement of Position). 

Our dissenting colleague is no more persuasive in 

contending that ‘‘due process demands’’ more than 

7 calendar days for a nonpetitioning party to 

prepare a Statement of Position. He fails to engage 

with due process case law or to explain how the 

3-day difference between our 7-day provision of 

preparation time and his preferred 10-day standard 

crosses over to a standard that falls short of 

constitutional guarantees. 

attributable to issues arising from the 

COVID–19 pandemic; if so, the 

increased timeline that purported to 

give parties a ‘‘better opportunity to 

reach election agreements’’ clearly has 

not functioned as intended in that 

context and we accordingly cannot be 

confident that the extended timeline 

does, in fact, better encourage election 

agreements. Regardless, the available 

data show a decline, rather than an 

increase, in the rate at which parties 

reach election agreements since the 

2019 rule took effect. 

The 2019 Board also asserted that a 

14-business day timeline ‘‘may’’ ease 

‘‘logistical burdens’’ on the agency’s 

regional personnel.62 Though we are 

sensitive to the demands on regional 

personnel, we make the policy judgment 

that the regions are better served 

shifting their resources to accomplish 

the statutory goal of more expeditiously 

resolving questions of representation. In 

any event, the significant drop in 

election agreement rates following the 

implementation of the 2019 rule— 

regardless of the specific reason for the 

drop—itself represents a significant 

drain on regional resources by adding 

many more representation cases to the 

regions’ hearing dockets. If a return to 

the 2014 rule allows election agreement 

rates to rebound, this should more 

effectively ease the logistical burdens on 

regional personnel from processing 

representation cases. 

The 2019 Board’s final justification— 

that a 14-business day timeline brings 

the pre-election hearing schedule ‘‘into 

closer alignment’’ with the post-election 

hearing schedule 63—is also not 

compelling. We do not discern a good 

reason to make the pre-election hearing 

timeline correspond to the post-election 

hearing timeline just to achieve 

symmetry. Instead, making pre-election 

hearing scheduling more uniform with 

post-election hearing scheduling simply 

imposes unnecessary delay in 

conducting pre-election hearings. 

B. Postponement of Pre-Election 

Hearing 

To further expedite the resolution of 

representation cases and promote 

uniformity and transparency, this final 

rule also reinstates the 2014 rule’s 

standard for postponement of a preelection hearing. Accordingly, a regional 

director can postpone a pre-election 

hearing for up to 2 business days upon 

request of a party showing special 

circumstances and for more than 2 

business days upon request of a party 

showing extraordinary circumstances.64

Reimposing a higher standard of 

postponement than the comparatively 

unbounded good cause standard that the 

2019 rule imposed makes clear to the 

parties that the statutory mission of the 

expeditious processing of representation 

cases will not give way unless the 

parties have truly special or 

extraordinary circumstances that make 

postponement appropriate.65 The 2019 

Board justified its imposition of a more 

permissive good cause standard by 

referring to regional director 

discretion.66 But the regional 

directors—the career officials who do an 

admirable job administering 

representation cases—already had 

adequate discretion in this regard. 

Specifically, the 8-calendar day time 

frame is inapplicable when, in the 

regional director’s discretion, the case 

presents unusually complex issues 

because in those cases, the regional 

director may set the hearing to open in 

a longer time frame.67 Thus, requests to 

extend the opening of pre-election 

hearings beyond 8 days are unnecessary 

in cases presenting sufficient 

complexity and, in all other cases, delay 

is reasonably only warranted when a 

party has a truly special or 

extraordinary circumstance. Moreover, 

by concretely defining the standard 

postponement as up to 2 business days 

where the ‘‘special circumstances’’ 

criterion is satisfied, the representation 

case process in this respect becomes 

more transparent, as the parties are 

aware ahead of time what sort of 

postponement they might encounter. 

The process also becomes more 

uniform, as similarly situated parties in 

diverse regions of the country will likely 

have postponements of similar length. 

C. Due Date for Nonpetitioning Party’s 

Statement of Position 

The final rule also reinstitutes the 

2014 rule’s requirement that the 

nonpetitioning party’s Statement of 

Position is due to be filed by noon the 

business day before the opening of the 

pre-election hearing.68 Thus, because 

the pre-election hearing will normally 

open 8 calendar days after service of the 

Notice of Hearing, the Statement of 

Position will be due about 7 calendar 

days after service of the Notice of 

Hearing. 

This 7-day time frame is sufficient for 

completion of the Statement of 

Position.69 The 2019 Board labeled the 

Statement of Position ‘‘complicated,’’ 

but it is not. It requires the 

nonpetitioning party to briefly specify 

its positions on the appropriateness of 

the petitioned-for unit, jurisdiction, the 

existence of any bar to an election, and 

the type, dates, times, and locations of 

the election.70 Specifically, an employer 

simply needs to disclose little more 

than: whether an election involving its 

own employees has been held in the 

preceding 12 months, and whether the 

petitioned-for employees are covered by 

a contract (election bar issues); whether 

the employer is engaged in interstate 

commerce (jurisdiction); and whether 

employees in the petitioned-for unit 

share similar working conditions (unit 

appropriateness). This is the sort of 

information that a typical employer 

knows before a petition is ever filed,71

and, even if it did not, it is the sort of 

information an employer would usually 

determine when it becomes aware of a 

union organizing drive, which is 

typically before the filing of a petition.72

Giving the nonpetitioning party 7 

additional days to compile the 

information after service of the Notice of 

Hearing is enough. To the extent that a 

small minority of employers may feel 

rushed when compiling the relevant 

information, that tradeoff is again 

consistent with our mission: the 

statutory interest in expeditiously 

resolving questions of representation 

outweighs the non-statutory interest in 

maximizing employer convenience.73

The 2019 Board did not rely on 

empirical evidence or other data to 

extend the due date for the 

nonpetitioning party’s Statement of 

Position to 8 business days after service 

of the Notice of Hearing. The 2019 

Board speculated that giving parties 


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74 84 FR at 69535. 

75 Id. 

76See supra fn.61. 

77 79 FR at 74371, 74374; 29 CFR 102.63(b) (Dec. 

15, 2014). 

78See supra B. Postponement of Pre-Election 

Hearing. Of course, any extension of time granted 

for the filing of the Statement of Position will 

typically result in a corresponding delay in the 

hearing date and the petitioner’s oral response to 

the Statement of Position. 

79 84 FR at 69536; 29 CFR 102.63(b)(1)(ii) (Dec. 

18, 2019). 

80 79 FR at 74309, 74393; 29 CFR 102.66(b) (Dec. 

15, 2014). 

81 84 FR at 69536. 

82 Id. 

83 Id. 

84 Id. at 69537. 

more time may help the parties ‘‘better 

balance’’ their other pre-hearing tasks, 

‘‘including retaining counsel, 

researching the facts and relevant law, 

identifying and preparing potential 

witnesses, making travel arrangements, 

coordinating with regional personnel, 

and exploring the possibility of an 

election agreement.’’ 74 Even assuming 

that the 2019 Board had cited data 

suggesting that these tasks are 

particularly time-consuming in the 

context of a pre-election hearing (which 

it did not), they are tasks that are in 

synergy with the requirement of the 

Statement of Position. Specifically, 

researching the facts and relevant law, 

identifying and preparing potential 

witnesses, and exploring the possibility 

of an election agreement are all tasks 

that will reveal the information that is 

required to be compiled and disclosed 

in the Statement of Position. In other 

words, gathering the information 

required by the Statement of Position is 

not an additional task that will add time 

to a nonpetitioning party’s pre-hearing 

work; instead, it is a task that a 

nonpetitioning party will already be 

performing. Acknowledging this reality 

undercuts another of the 2019 Board’s 

assertions—that giving more time for 

preparation of the Statement of Position 

would promote more election 

agreements.75 It is the compiling of the 

relevant information—again, something 

that an employer will already be doing 

in the run up to a pre-election hearing— 

that facilitates entry into election 

agreements, and the instant rule, by 

preserving approximately one business 

day after the filing and service of the 

Statement of Position before the hearing 

opens, just as readily facilitates 

agreements. Indeed, since the 2019 

rule’s 8-business day time frame has 

taken effect, there has been no increase 

in election agreements.76 Even assuming 

the 7-calendar day time frame for 

completion of the Statement of Position 

causes some inconvenience, we believe 

that the statutory interest in 

expeditiously resolving questions of 

representation outweighs the nonstatutory interest in maximizing the 

convenience of the nonpetitioning 

parties. Accordingly, to further expedite 

the resolution of representation cases, 

the nonpetitioning party’s Statement of 

Position ordinarily will now be due 7 

calendar days after service of the Notice 

of Hearing, just as it was under the 2014 

rule. 

D. Postponement of the Statement of 

Position 

To further expedite the resolution of 

representation cases and promote 

uniformity and transparency, this rule 

also reinstitutes the 2014 rule’s standard 

for an extension of time for the filing of 

a Statement of Position. Accordingly, a 

regional director may postpone the due 

date for the filing of a Statement of 

Position up to 2 business days upon 

request of a party showing special 

circumstances and for more than 2 

business days upon request of a party 

showing extraordinary circumstances.77

This amendment is justified for 

substantially the same reasons as the 

amendment to the standard for 

postponement of the opening of the preelection hearing—namely, this standard 

makes clear to the parties that the 

statutory mission of the expeditious 

processing of representation cases will 

not give way unless the parties have 

truly special or extraordinary 

circumstances justifying the delay and 

provides a more concrete guidepost in 

the interests of uniformity and 

transparency.78

E. Responsive Statement of Position 

This rule also rescinds the 2019 rule’s 

requirement that a petitioner file a 

written responsive Statement of Position 

by noon 3 business days after the 

nonpetitioning party’s filing of its 

Statement of Position and 3 business 

days before the opening of the preelection hearing.79 In its place, this rule 

reinstates the 2014 rule’s requirement 

that, if the parties are unable to enter 

into an election agreement, the 

petitioner shall respond orally on the 

record at the pre-election hearing to the 

issues raised in the nonpetitioning 

party’s Statement of Position.80 Like 

many of the other amendments made by 

this rule, this particular amendment 

will further the agency’s statutory 

mandate to more expeditiously resolve 

questions of representation. 

The gains in terms of expedition are 

substantial. By eliminating the 3 

business days that a petitioning party 

has to formulate a written response to a 

nonpetitioning party’s Statement of 

Position and further eliminating the 

additional 3 business days of mandated 

waiting that follows, the Board has 

eliminated 6 business days from the 

representation case process. This 

delay—and the responsive Statement of 

Position that the 2019 Board used to 

justify it—was unnecessary. 

As the 2019 Board itself admitted, the 

petitioner already takes a written 

position on certain key issues to be 

resolved at the pre-election hearing in 

its petition.81 Requiring a responsive 

Statement of Position is largely 

redundant and does not ‘‘serve the 

purpose of uniformity’’ by ensuring that 

each side makes a written filing prior to 

the pre-election hearing,82 as each side 

already puts its positions in writing. As 

to the other issues that the 

nonpetitioning party’s Statement of 

Position addresses for the first time— 

like jurisdiction (which turns on the 

employer’s dealings in interstate 

commerce) and the names and job titles 

of the employer’s own employees—that 

depends on information that is usually 

under the exclusive control of the 

nonpetitioning employer and, if 

necessary, can be responded to by the 

petitioner orally at the hearing without 

a written response. The 2019 Board was 

of the view that a responsive Statement 

of Position would help ‘‘clarify’’ 

positions and provide ‘‘notice’’ of the 

issues that remain in dispute to be 

worked out at the hearing.83 But the 

2019 Board pointed to no evidence that 

a petitioner’s oral statement on the 

record at the opening of the pre-election 

hearing did not already provide the 

needed clarification and notice that 

would guide the resolution of 

outstanding issues throughout the 

remainder of the hearing. 

The 2019 Board also asserted that the 

‘‘[m]ost important[]’’ feature of requiring 

a written responsive Statement of 

Position was ‘‘greater efficiency.’’ 84 But 

requiring the petitioning party to 

prepare and file a statement that is 

largely redundant to its already-filed 

written petition and that deals with a 

few additional issues that can be readily 

addressed orally at the pre-election 

hearing adds inefficiency to the 

representation case process. And by 

giving the petitioning party 3 business 

days to prepare its responsive Statement 

of Position and then adding 3 additional 

business days after its filing before the 

pre-election hearing can open, the 2019 

rule’s requirement further guaranteed 

that 6 additional business days are 

added to every representation case that 


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85 Id. 

86 Id. 

87See supra fn.61. 

88 84 FR at 69538. 

89 79 FR at 74309, 74379. 

90 79 FR at 74379–74380; 29 CFR 102.63(a)(2) 

(Dec. 15, 2014). 

91The employer is also provided with 

instructions on how to post and distribute it. See 

79 FR 74463; 29 CFR 102.63(a)(1), (2) (Dec. 15, 

2014). 

92 84 FR at 69538; 29 CFR 102.63(a)(2) (Dec. 18, 

2019). 

93 84 FR at 69538. 

94Our dissenting colleague does little more than 

repeat the 2019 speculation that both large and 

small employers will have difficulty complying 

with notice-posting within 2 business days. Yet, he 

cites no evidence that any such issues proved 

problematic in the five years that the 2014 rule’s 

standard was in effect. 95 84 FR at 69538. 96Section 9(c)(1) of the Act provides, in relevant 

part: ‘‘Whenever a petition shall have been filed 

. . . the Board shall investigate such petition and 

if it has reasonable cause to believe that a question 

of representation affecting commerce exists shall 

provide for an appropriate hearing upon due notice. 

. . . If the Board finds upon the record of such 

hearing that such a question of representation 

exists, it shall direct an election by secret ballot and 

shall certify the results thereof.’’ 

goes to a pre-election hearing. Requiring 

an additional and unnecessary written 

filing and then stopping the 

representation case process for 6 days is 

inefficient. The 2019 Board also said 

that the additional written filing and 

mandated delay might ‘‘facilitate better 

preparation for the hearing’’ by the 

parties and agency personnel 85 and 

‘‘additional opportunity and incentive 

for parties to reach election 

agreements.’’ 86 As to the former 

rationale, there is no evidence that the 

conduct of hearings has demonstrably 

improved as a result of this device (or 

that the 2014 rule’s requirement had 

impaired hearing efficiency). As to the 

2019 Board’s latter rationale of 

promoting election agreements, there is 

no indication that the speculation has 

come to pass. The evidence is that 

stipulation rates have not improved 

since the 2019 rule took effect, but have 

in fact decreased.87

In sum, the 2019 rule’s requirement of 

a written responsive Statement of 

Position plus delay of 6 additional 

business days has hindered the 

expeditious resolution of representation 

cases. Accordingly, this rule—to further 

the agency’s statutory mission of 

expeditious and efficient resolution of 

representation cases—eliminates the 

responsive Statement of Position 

requirement and its attendant 6- 

business day delay. 

F. Posting and Distribution of Notice of 

Petition for Election 

The posting and electronic 

distribution of the Notice of Petition for 

Election serves the important purpose of 

quickly and clearly communicating to 

employees and employers alike 

important information about the 

representation case process. This 

effective mechanism for accurate 

information sharing—which the 2019 

Board admitted serves a ‘‘laudatory 

purpose’’ 88—is essential to 

strengthening workplace democracy. 

The Notice specifies that a petition has 

been filed, the type of petition, the 

proposed unit, the name of the 

petitioner, briefly describes the 

procedures that will follow, lists 

employee rights and sets forth in 

understandable terms the central rules 

governing organizational campaign 

conduct, and provides the Board’s 

website address, where more 

information about the representation 

case process is available.89

Given the straightforward but 

essentially important information 

conveyed by this Notice of Petition for 

Election, the 2014 rule provided for the 

employer to post it within 2 business 

days after service of the Notice of 

Hearing in conspicuous places in the 

workplace and to electronically 

distribute it to employees if the 

employer customarily communicates 

with its employees electronically. That 

timeline is warranted.90 An employer is 

provided with the Notice of Petition for 

Election by the regional director at the 

same time it receives the Notice of 

Hearing; it is not a document for which 

the employer needs to compile any 

information or draft itself.91 The 

employer’s task involves no more than 

printing copies of the Notice it is 

provided, affixing them to the wall of 

the workplace, and sending digital 

copies of the document to employees in 

an email or some similar electronic 

service. Given that an employer can 

promptly complete this task, the 

provision of 2 business days to complete 

it is sufficient, particularly when 

weighed against the vital information 

that the Notice disseminates. 

Accordingly, this rule rescinds and 

replaces the 5-business day time frame 

that the 2019 rule gave employers to 

post the Notice of Petition for Election 

after service of the Notice of Hearing.92

Instead, we replace it with the 2- 

business day timeline set forth in the 

2014 rule, because in our view the 2019 

Board provided no good reason for 

providing the additional time. The 2019 

Board speculated that employers, 

particularly ‘‘large multi-location 

employers,’’ ‘‘may’’ face ‘‘logistical 

difficulties’’ in complying with the 2- 

business day timeline.93 However, the 

2019 Board cited no evidence for this 

rationale. That is because large multilocation employers, with large 

centralized human resource 

departments and sophisticated 

electronic infrastructure, are 

particularly able to execute this task 

quickly. Smaller employers can also 

complete this task within 2 business 

days given the simplicity of the posting 

requirement and the relatively smaller 

audience to whom a small employer 

must distribute the Notice.94

The 2019 Board’s other rationale for a 

5-business day time frame was that 

quick dissemination of the Notice was 

‘‘less urgent’’ because of the delay its 

rule had imposed in the opening of the 

pre-election hearing.95 That rationale 

shows the 2019 Board’s 

misunderstanding of key aspects of the 

representation case process and the 

reality of organizational campaigns. The 

purpose of the Notice is not to inform 

employees of the pre-election hearing; 

rather, as noted, it serves the important 

purpose of informing employees and the 

employer alike about the filing of the 

petition, the process that will follow, 

employee rights, and the rules 

governing campaign conduct. 

Accordingly, by requiring posting 

within 2 business days, we promote 

greater transparency concerning the 

representation case process. 

Additionally, because, for the reasons 

explained elsewhere, we have reinstated 

the 2014 rule’s 8-calendar day timeline 

for the opening of the pre-election 

hearing, even if it made sense to link the 

posting of the Notice and the opening of 

that hearing, shortening the time frame 

for posting of the Notice from 5 to 2 

business days approximates the 

equivalent reduction in the time it will 

take for the pre-election hearing to open. 

102.64 Conduct of Hearing 

Section 9(c)(1) of the Act establishes 

the purpose of a pre-election hearing: to 

determine whether a question of 

representation exists.96 Even so, prior to 

the 2014 rule, the Board’s rules and 

regulations entitled parties to litigate, at 

the pre-election hearing, issues like 

individual eligibility to vote or 

inclusion in an appropriate unit 

(including supervisory status questions) 

that were not necessary to determine 

whether a question of representation 

exists. The 2014 rule expressly stated 

the purpose of the pre-election 

hearing—to determine whether a 

question of representation exists—and 

established that individual eligibility 

and inclusion issues ‘‘ordinarily need 

not be litigated or resolved before an 

election is conducted’’ and ensured that 


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97 79 FR at 74380–74393. These 2014 rule 

provisions were uniformly upheld by the courts. 

Indeed, every court to have considered the matter 

has rejected the claim that the statute entitles 

parties to litigate at the pre-election hearing (and 

requires the regional director or the Board to decide 

prior to the election) all individual eligibility or 

unit inclusion issues. See RadNet, 992 F.3d at 1122; 

UPS, 921 F.3d at 257; ABC of Texas, 826 F.3d at 

222–223; Chamber, 118 F. Supp. 3d at 195–203. 

98 79 FR at 74391; see New York Law Publishing 

Co., 336 NLRB No. 93, slip op. at 1 (2001) (‘‘The 

parties may agree through the course of collective 

bargaining on whether the classification should be 

included or excluded.’’). 

99 79 FR at 74391. 

100 Id. at 74386–74387. 

101AFL–CIO, 466 F. Supp. 3d at 100. 

102AFL–CIO, 57 F.4th at 1043–1045. 

103 88 FR at 14913, 14914. 

104E.g., February 15, 2018 Letter from NLRB 

Chairman Kaplan and General Counsel Robb to 

Senator Murray and Representatives Scott, Sablan, 

and Norcross (Summary Table) (reporting a 24-day 

median for regional directors to issue a decision 

and direction of election following the close of the 

pre-election hearing in the year immediately 

preceding the 2014 rule’s effective date as 

compared to a 12-day median in the year 

immediately following the 2014 rule’s effective 

date). 

105See 79 FR at 74387–74388. 

106While the 2014 Board set forth its view that 

‘‘regional directors’ discretion would be exercised 

wisely if regional directors typically chose not to 

expend resources on pre-election [litigation and 

resolution of] eligibility and inclusion issues 

amounting to less than 20 percent of the proposed 

unit,’’ and if regional directors typically chose to 

approve parties’ stipulated election agreements in 

which up to 20% of the unit is to be voted under 

challenge, 79 FR at 74388 fn.373, the 2014 Board 

also stated, as the Fifth Circuit noted, that it 

‘‘ ‘expect[ed] regional directors to permit litigation 

of, and to resolve, such [individual eligibility or 

inclusion] questions when they might significantly 

change the size or character of the unit.’ ’’ See ABC 

of Texas, 826 F.3d at 222; 79 FR at 74390. 

107For the 2-year period immediately following 

the implementation of the 2014 rule there were 191 

election agreements that permitted individuals to 

vote subject to challenge. See February 15, 2018 

Letter from NLRB Chairman Kaplan and General 

Counsel Robb to Senator Murray and 

Representatives Scott, Sablan, and Norcross at p.5. 

For the 2-year period prior to the implementation 

of the 2014 rule there were only 47 election 

agreements that permitted individuals to vote 

subject to challenge. See February 15, 2018 Letter 

from NLRB Chairman Kaplan and General Counsel 

Robb to Senator Murray and Representatives Scott, 

Sablan, and Norcross at p.5. Accordingly, the 2014 

rule caused an uptick in agreements to defer 

litigation. Nevertheless, information produced from 

searches in the Board’s NxGen case processing 

software shows that in fiscal years 2016 and 2017, 

the first two full fiscal years after implementation 

of the 2014 rule, there were only 56 cases requiring 

a post-election regional director decision on 

determinative challenges across 3,203 cases with an 

election (1.75% of cases with an election), and in 

fiscal years 2013 and 2014, the last two full fiscal 

years before implementation of the 2014 rule, there 

were 53 such cases across 3,240 cases with an 

election (1.64% of cases with an election). 

Accordingly, even with the uptick in the proportion 

of cases involving agreements to defer, the 

proportion of cases requiring a post-election 

decision to resolve those challenges remained stable 

at about 1.7%. 

regional directors could limit the 

evidence offered at the pre-election 

hearing to that which is necessary for a 

determination of whether a question of 

representation exists. The 2019 rule 

provided that individual eligibility and 

inclusion issues should ‘‘normally’’ be 

resolved at the pre-election hearing. 

This rule reinstitutes the 2014 

amendments and rescinds the 2019 

amendments.97

It is inefficient to encourage parties to 

litigate individual eligibility and 

inclusion issues at the pre-election 

hearing. By not addressing these 

individual eligibility and inclusion 

issues in the ordinary course at the preelection hearing, unnecessary litigation 

is eliminated. Specifically, if a majority 

of employees votes against 

representation in the election, even 

assuming all the disputed votes were 

cast in favor of representation, then the 

disputed eligibility and inclusion 

questions become moot and therefore 

never have to be litigated or decided. If, 

on the other hand, a majority of 

employees chooses to be represented, 

even assuming all the disputed votes 

were cast against representation, then 

the Board’s experience suggests that the 

parties are often able to resolve the 

resulting unit placement questions in 

the course of bargaining once they are 

free of the tactical considerations that 

exist pre-election.98 Thus, here too the 

disputed eligibility or inclusion issues 

never need to be litigated or decided by 

the Board. Even if the parties cannot 

work out the remaining individual 

issues in bargaining, there is no need for 

another election to resolve the matter; 

rather, the unit placement of a small 

number of employees can be resolved 

through a unit clarification procedure.99

The gains in efficiency and expedition 

are not just accrued in the minority of 

representation cases that require a preelection hearing. Bargaining between 

the parties always takes place in the 

shadow of the law—that is, against the 

backdrop of what would happen if the 

parties failed to enter into an election 

agreement and proceeded to a preelection hearing. Accordingly, if there is 

leeway to regularly litigate individual 

eligibility or inclusion issues at the preelection hearing, then, even if there are 

no disputes as to facts relevant to the 

existence of a question of 

representation, parties may have an 

incentive to insist on raising individual 

issues and proposing to present 

evidence related to those issues to 

trigger the threat of the delay occasioned 

by the hearing process and the time it 

will take the regional director to review 

the transcript and write a decision in 

order to extract concessions from the 

opposing side.100

The 2019 rule’s directive that 

individual eligibility and inclusion 

issues ordinarily should be litigated at 

the pre-election hearing and decided 

prior to the election has never taken 

effect because of the district court’s 

order enjoining it,101 and, following the 

D.C. Circuit’s reversal of the district 

court’s ruling in that regard,102 the 

Board’s order extending its effective 

date.103 The relevant evidence since 

enactment of the 2014 amendments 

show the gains in efficiency referenced 

above. After the 2014 rule took effect, 

with the pre-election hearing focused on 

the existence of a question of 

representation rather than on extraneous 

issues that can be resolved, if necessary, 

later in the representation case process, 

there was a significant reduction in the 

time it took regional directors to issue 

their decisions and directions of 

elections.104

Further, the 2019 Board ignored the 

2014 Board’s explanation of why 

permitting regional directors to deny 

litigating a small number of individual 

eligibility or inclusion issues was 

unlikely to increase the number of 

determinative challenge cases requiring 

post-election litigation of those 

issues.105 As the Fifth Circuit explained 

in upholding the provision, ‘‘[t]he Board 

considered evidence that more than 

70% of elections in 2013 were decided 

by a margin greater than 20% of all unit 

employees, ‘suggesting that deferral of 

up to 20% of potential voters . . . 

would not have compromised the 

Board’s ability to immediately 

determine election results in the vast 

majority of cases.’ ’’ ABC of Texas, 826 

F.3d at 228.106

Significantly, the Board’s experience 

since the 2014 rule provisions went into 

effect confirms the validity of the 2014 

Board’s judgment in this regard and 

undermines the 2019 Board’s 

conclusion that the 2014 rule’s benefits 

of avoiding unnecessary litigation that 

also delays elections comes at the 

expense of certainty, finality, and 

efficiency. After the 2014 rule went into 

effect, the number of elections resulting 

in determinative challenges remained 

stable, despite a significant increase in 

regional directors approving election 

agreements in which certain individuals 

vote subject to challenge.107 That fact 

supports the conclusion that when 

regional directors deny pre-election 

litigation of a small number of 

individual eligibility and inclusion 

issues, they avoid unnecessary litigation 

that is often ultimately mooted by the 

results of the election. The statistics also 

show that there was stability in the 


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108Comparing information reported on the 

agency’s website concerning total representation 

elections won by unions with information reported 

in the NLRB Performance and Accountability 

Reports concerning total unit clarification petitions 

filed in the following fiscal year (to take into 

account time for bargaining to resolve any deferred 

unit placement issues) shows that in fiscal years 

2016 and 2017, which again were the first two full 

fiscal years after the implementation of the 2014 

rule, unit clarification petitions constituted 8.2% 

and 7.2% of all representation elections won by 

unions in the previous fiscal year, and in fiscal 

years 2013 and 2014, which again were the last two 

full fiscal years prior to the implementation of the 

2014 rule, the corresponding figures were 7.3% and 

8.7%. 

109 84 FR at 69539–69540. 

110Contrary to the unfounded speculation of the 

2019 Board majority, see 84 FR at 69525, 69529, 

69530, 69540, as well as the predictions of the 2014 

dissenting Board Members, see 79 FR at 74438 

fn.581, 74445, the relevant data indicate no increase 

in post-election objections litigation arising after the 

deferral of supervisory status questions under the 

2014 rule. Comparing the periods before and after 

implementation of the 2014 rule (which 

approximates the change that would result from the 

2019 rule’s litigation changes going into effect), 

there was stability in the number of cases 

necessitating post-election decisions on objections 

by regional personnel and in the number of rerun 

elections ordered by regional directors. 

Information produced from searches in the 

Board’s NxGen case processing software shows that 

in fiscal years 2016 and 2017, which were the first 

two full fiscal years after the implementation of the 

2014 rule, there were 114 cases requiring a regional 

decision on objections following an election and 61 

cases in which regional directors directed rerun 

elections, as compared to 3,203 total elections, 

amounting to objections in 3.56% of all elections 

and reruns in 1.9% of all elections. For fiscal years 

2013 and 2014, which were the last two full fiscal 

years prior to the implementation of the 2014 rule, 

there were 118 objections cases and 59 reruns as 

compared to 3,240 total elections, amounting to 

objections in 3.64% of all elections and reruns in 

1.82% of all elections. Thus, the implementation of 

the 2014 rule did not cause a spike in either postelection objections or in elections needing to be 

rerun. 

111 79 FR at 74389. 

112Our dissenting colleague contends that ‘‘this 

issue is not simply about an employer 

disseminating its message to employees, it is about 

‘post-election complications where the putative 

supervisors engage in conduct during the critical 

period that is objectionable when engaged in by a 

supervisor, but is unobjectionable when engaged in 

by nonparty employees.’ ’’ But, as noted in fn.110, 

supra, the relevant data show no overall increase in 

election objections that would have resulted from 

more objectionable conduct by individuals later 

determined to be supervisors following 

implementation of the 2014 rule. And our 

dissenting colleague makes no attempt to support 

his abstract prediction with cases or data showing 

otherwise. This is especially notable since the 2014 

rule to which we return and which made it so that 

individual eligibility and inclusion issues were 

ordinarily not litigated at the pre-election hearing 

was in effect for five years, surely sufficient time 

for ‘‘complications’’ to have arisen, if in fact they 

were real. 

113This would also include a substantial part of 

the ‘‘critical period’’ between the filing of the 

petition and the election. 79 FR at 74389. 

114See infra B. Elimination of the 20-Business 

Day Waiting Period Between Issuance of the 

Decision and Direction of Election and the Election. 

115 84 FR at 69540–69541. 

116UPS, 921 F.3d at 257 (internal quotation marks 

omitted). 

number of unit clarification petitions,108

demonstrating that the increased preelection deferral of individual eligibility 

decisions did not cause a spike in 

parties coming back before the Board to 

resolve individuals’ placement inside or 

outside the relevant bargaining units. In 

short, the 2014 amendments that we 

reinstate have not shifted litigation from 

before the election to after the election. 

Rather, the amendments have 

eliminated pre-election litigation that 

was unnecessary, as proven by the 

absence of a corresponding increase in 

post-election litigation. Thus, by 

continuing to encourage the deferral of 

individual eligibility decisions, the rule 

we adopt demonstrates a substantial 

gain in agency efficiency. 

The 2019 Board provided several 

justifications for its expansion of 

litigation at the pre-election hearing but 

none of them is compelling. Its 

justification articulated in terms of 

enhanced finality and certainty 109 is not 

supported by the data, cited above, 

showing the stabilizing effect of the 

2014 rule on both post-election 

litigation concerning determinative 

challenges and the need for unit 

clarification petitions. Elections thus 

remain just as final and certain under 

the 2014 amendments as they were 

under the pre-2014 status quo to which 

the 2019 rule would largely return. 

The 2019 Board’s concern that 

individual questions of supervisory 

status, if not decided pre-election, 

would prevent employers from knowing 

who they can use to campaign against 

a union in the pre-election campaign 

and would increase the possibility of 

post-election objections based on 

conduct attributable to an individual 

whose eligibility and/or supervisory 

status was not resolved prior to an 

election is similarly unpersuasive.110

Supervisory status issues exist only at 

the margin because in most cases where 

there is uncertainty concerning the 

supervisory status of one or more 

individuals, the employer nevertheless 

has in its employ managers and 

supervisors whose status is not in 

dispute.111 The importance of 

expedition in the election process 

simply outweighs employers’ interest in 

certainty that a particular individual or 

individuals may or may not be utilized 

in a pre-election campaign against a 

union. The employer is not hindered in 

its efforts to mount its pre-election 

campaign if it chooses to avoid utilizing 

individuals on its behalf whose 

statutory supervisory status is uncertain, 

a determination that employers are best 

situated to determine.112 On the other 

hand, the 2019 rule’s requirement that 

the marginal supervisor’s status be 

resolved before the election creates the 

possibility, if not the probability, of 

extensive and detail-oriented litigation 

of the supervisory status of one or more 

individuals, which would, in turn, 

inevitably slow down the election 

process. In other words, it creates 

incentives that are the exact opposite of 

the goals of a speedy and efficient 

election process. Moreover, even if 

supervisory status issues had to be 

litigated and resolved pre-election, the 

issues would still remain unresolved 

between the time the petition was filed 

and the holding of a hearing and the 

subsequent rendering of the regional 

director’s decision. Thus, there would 

always inevitably be a period of time 

during a campaign when supervisory 

status issues, to the extent they exist, are 

unresolved.113 Then, even if the 

regional director resolved the issues 

before an election, that resolution would 

still remain subject to review by the 

Board, and any Board decision, in turn, 

would potentially be subject to review 

in a court of appeals. Moreover, because 

we separately rescind the 2019 rule’s 

mandatory 20-business day waiting 

period before an election can be held 

following issuance of a decision and 

direction of election,114 there is a 

shorter window between any decision 

and direction of election and the 

election itself. That, in turn, reduces any 

benefit of having a regional director 

decide, for the employer’s campaign 

purposes, who the supervisors are in the 

decision and direction of election. Thus 

the 2019 Board’s approach sacrificed 

efficiency and expeditiousness with a 

negligible countervailing benefit in 

terms of finality and certainty. 

The 2019 Board’s justification 

grounded in fair and accurate voting 

and transparency—namely, that 

resolving individual eligibility or 

inclusion issues before the election 

would permit employees to know the 

‘‘precise contours’’ of the unit in which 

they are voting 115—also is 

unconvincing. As noted above, even if 

individual eligibility and inclusion 

issues were decided before an election, 

there is always some uncertainty such 

that the ‘‘precise contours’’ of the unit 

are rarely defined prior to an election. 

For another, as the D.C. Circuit has 

explained, permitting employees ‘‘to 

vote under challenge’’ does not ‘‘imperil 

the bargaining unit’s right to make an 

informed choice, so long as the notice 

of election . . . alert[s] employees to the 

possibility of change to the definition of 

the bargaining unit,’’ 116 as occurs under 


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117 84 FR at 69541. 

118As the 2014 rule noted, there was no evidence 

that voter turnout was depressed prior to the 2014 

rule, when employees were likewise permitted to 

vote subject to challenge. 79 FR at 74390. 

119 In arguing that the Board should maintain the 

2019 rule’s directive that individual eligibility and 

inclusion issues should ordinarily be resolved prior 

to the election, our dissenting colleague attempts to 

rely on the Supreme Court’s decision in A.J. Tower. 

He misconstrues that case. In A.J. Tower, the 

Supreme Court, in addition to directing that ‘‘the 

Board must adopt policies and promulgate rules 

and regulations in order that employees’ votes may 

be recorded accurately, efficiently and speedily,’’ 

329 U.S. at 331, upheld the Board’s decision in that 

case to prohibit the employer’s post-election 

challenge to the eligibility of one of the voters in 

the election, id. at 332–333. The employer had 

attempted to challenge the eligibility of one of the 

voters 4 days after the election took place. Id. at 

327–328. In upholding the Board’s decision not to 

consider that untimely challenge, the Court agreed 

that ‘‘challenges to the eligibility of voters’’ must 

‘‘be made prior to the actual casting of ballots, so 

that all uncontested votes are given absolute 

finality.’’ Id. at 331. The case thus stands for the 

proposition that challenges to voters’ eligibility in 

union elections must be made prior to the 

election—not that all such challenges need to be 

resolved prior to the election. Indeed, post-election 

resolution of challenged ballots has been a feature 

of the Board’s election procedures since the earliest 

days of the Act (and has continued under both the 

2014 and 2019 rules). See, e.g., 79 FR at 74386 and 

fn.364, 74391 (citing Bituma Corp. v. NLRB, 23 F.3d 

1432, 1436 (8th Cir. 1994) (‘‘The NLRB’s practice 

of deferring the eligibility decision saves agency 

resources for those cases in which eligibility 

actually becomes an issue.’’)); 84 FR at 69540 fn.66, 

69541 (‘‘[W]e are not imposing a requirement that, 

absent agreement of the parties to the contrary, all 

eligibility issues must be resolved prior to an 

election. Section 102.64(a) as modified by the final 

rule states only that disputes concerning unit scope, 

voter eligibility, and supervisor status will 

‘normally’ be litigated and resolved by the regional 

director.’’). 

120 5 U.S.C. 557(c). 

121 5 U.S.C. 554(a)(6); see also 79 FR at 74402. 

122S. Rep. No. 752, at 202 (1945); see also 79 FR 

at 74402. 

123Senate Committee on the Judiciary 

Comparative Print on Revision of S. 7, 79th Cong., 

1st Sess. 7 (1945); see also 79 FR at 74402. 

124See 84 FR at 69542 (‘‘[W]e do not take issue 

with the proposition that the Board is not required 

to permit post-hearing briefs after pre-election 

hearings[.]’’). 

125 79 FR at 74401–74403, 74426–74427; 29 CFR 

102.66(h) (Dec. 15, 2014). We agree with the 2014 

Board’s conclusion that given the often recurring 

and uncomplicated legal and factual issues arising 

in pre-election hearings, briefs are not necessary in 

every case to permit the parties to fully and fairly 

present their positions or to facilitate prompt and 

accurate decisions. 

126 Id. 

127Our dissenting colleague points to cases 

involving independent contractor status as 

exemplars of situations in which briefing would 

assist regional directors with the application of 

multi-factor legal tests. However, under the 2014 

rule, regional directors exercised their discretion to 

permit briefing in many independent contractor 

cases. See 84 FR at 69578 fn.230 (then-Member 

McFerran, dissenting) (listing independent 

contractor cases in which regional directors allowed 

briefing under the 2014 rule). We also find it 

significant that in some independent contractor 

cases, parties waived filing briefs in lieu of 

presenting oral argument, thereby evidencing that 

parties themselves recognize that post-hearing 

briefing to regional directors is not necessary in all 

cases involving independent contractors. Id. 

We also note that, just as was the case under the 

2014 rule, parties remain entitled to file a brief with 

the Board in support of any request for review of 

the regional director’s decision and direction of 

election. 79 FR at 74402. 

128 Information produced from searches in the 

Board’s NxGen case processing software shows that 

in fiscal years 2018 and 2019—the last two full 

years the 2014 rule was in effect—the Board granted 

review in 9 of the 82 cases in which a party filed 

a request for review and reversed the regional 

director’s decision in 2 of those cases. Accordingly, 

across those years, a request for review was granted 

in 10.98% of cases with an election in which a 

request for review was filed, and a request for 

review caused a reversal in 2.44% of cases with an 

election in which a request for review was filed. In 

fiscal years 2021 and 2022—the first two full years 

the 2019 rule was in effect—the Board granted 

review in 19 of the 119 cases in which a party filed 

a request for review and reversed the regional 

director’s decision in 5 of those cases. Accordingly, 

across those years, a request for review was granted 

in 15.97% of cases with an election in which a 

request for review was filed, and a request for 

review caused a reversal in 4.2% of cases with an 

election in which a request for review was filed. 

Accordingly, the data do not tend to show that 

regional director decision making has improved 

with the benefit of default briefing under the 2019 

rule. This is consistent with prior data showing that 

regional director decision making did not suffer 

following the implementation of the 2014 rule. See 

84 FR at 69578 fn.231 (then-Member McFerran, 

dissenting). 

129Our dissenting colleague contends that 

permitting briefing in all cases would ‘‘promot[e] 

Continued 

the rules. The 2019 Board’s view that 

this notice would confuse employees 

and so ‘‘runs the risk of being a 

disincentive for some employees to 

vote’’ 117 was based on no evidence of 

reduced voter turnout.118

In sum, by rescinding the 2019 

amendments and restoring the 2014 rule 

language, we reduce unnecessary 

litigation and eliminate an unnecessary 

barrier to the fair and expeditious 

resolution of questions concerning 

representation.119

102.66 Introduction of Evidence: 

Rights of Parties at Hearing; Preclusion; 

Subpoenas; Oral Argument and Briefs 

A. Introduction of Evidence; Offers of 

Proof 

Consistent with the modifications to 

Section 102.64 explained immediately 

above and for the reasons discussed 

there, this reinstated rule reverts Section 

102.66(a) to the version that resulted 

from the 2014 rule to clarify that the 

evidence admissible at a pre-election 

hearing is normally limited to the 

existence of a question of representation 

and is not admissible as to other issues. 

Further consistent with that and for the 

same reasons, this rule modifies Section 

102.66(c) to eliminate the introduction 

of evidence that is not consistent with 

the offer of proof procedure for the 

receipt of evidence concerning the 

existence of a question of 

representation. 

B. Briefing Following Pre-Election 

Hearing 

Generally, in formal agency 

adjudication, parties are entitled to 

briefing.120 But Congress expressly 

excluded adjudications involving ‘‘the 

certification of worker representatives’’ 

from that requirement.121 It did so 

because ‘‘these determinations rest so 

largely upon an election or the 

availability of an election’’ 122 and 

‘‘because of the simplicity of the issues, 

the great number of cases, and the 

exceptional need for expedition.’’ 123

The 2019 Board acknowledged this.124

Even so, the 2019 Board decided to 

grant parties an absolute right to file 

briefs up to 5 business days following 

the close of the pre-election hearing, 

with an extension of an additional 10 

business days available upon a showing 

of good cause. This rule rescinds that 

decision and reverts to the 2014 rule’s 

standard that parties are entitled to 

present oral argument at the close of the 

pre-election hearing, but they may file 

post-hearing briefs only upon special 

permission of the regional director and 

within the time and addressing only the 

subjects permitted by the regional 

director.125

Rescission of the blanket entitlement 

to post-hearing briefing is warranted 

given the recurring and uncomplicated 

legal and factual issues arising in preelection hearings. There is a relatively 

contained body of law applicable in the 

repeated factual contexts that present 

issues at pre-election hearings, and, 

accordingly, in the vast majority of 

cases, regional directors can properly 

resolve the issues without briefing.126

Moreover, regional directors retain the 

discretion to order briefing when they 

are confronted with the rare case that 

poses a truly complex issue.127

The Board thus has no reason to 

believe that the quality of regional 

director decisions will decline. Regional 

directors infrequently make incorrect 

decisions in the pre-election context. 

Since the 2019 rule took effect, there has 

been no decline in the proportion of 

cases in which the Board grants review 

or reverses regional director pre-election 

decisions, which tends to show that the 

default entitlement to post-hearing 

briefing has not helped regional 

directors reach the right results or avoid 

prejudicial errors to an even greater 

degree.128 Eliminating the default 

entitlement to post-hearing briefing thus 

comes with no clearly discernible cost, 

and the primary benefit is enhancing the 

Board’s ability to expeditiously process 

representation cases.129 By eliminating a 


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more efficient case processing without unduly 

delaying resolution of the case.’’ (Emphasis in 

original.) We have provided reasons and analyzed 

data to show why briefing as a matter of right is, 

among other things, inefficient. 

130 79 FR at 74404. 

131 Id.; see also 29 CFR 102.61(a)(12), (b)(9), 

(c)(11); 102.63(b)(1)(i), (2)(i), (iii), (3)(i); 102.66(g) 

(Dec. 15, 2014). 

132 79 FR at 74404–74405. 

133 84 FR at 69544; 29 CFR 102.67(b) (Dec. 18, 

2019). 

134 84 FR at 69544. 

135See 29 CFR 102.67(b) (Dec. 15, 2014); 29 CFR 

102.67(b) (Dec. 18, 2019). 

136 84 FR at 69544–69547; 29 CFR 102.67(b) (Dec. 

18, 2019). 

137 29 U.S.C. 153(b). 

138 84 FR at 69544–69547. 

139For instance, information produced from 

searches in the Board’s NxGen case processing 

software shows that in fiscal year 2019—the last full 

year that all provisions of the 2014 rule were in 

effect—there were 1,179 total elections and 128 

cases with a decision and direction of election but 

only 47 with a request for review. So a request for 

review was filed in only 36.72% of cases with a 

directed election and in only 3.99% of cases with 

an election. Among those 47 cases with a request 

for review, only 2 requests for review were granted 

and neither resulted in an order staying an election, 

so a request for review was granted in only 0.17% 

of cases with an election and in only 1.56% of 

directed election cases. Neither of the cases granting 

the request for review resulted in an order staying 

an election, so there was a stay of the election in 

0% of elections (directed or otherwise). 

mandated 5-business day briefing 

period (with the possibility of 10 

additional business days upon an 

extension), the issuance of a decision 

and direction of election and any 

subsequent election can occur sooner. 

Moreover, giving no entitlement to posthearing briefing following a pre-election 

hearing and permitting it only if deemed 

helpful by the decisionmaker is a 

uniform and transparent standard and, 

by eliminating a redundant round of 

briefing, the rule promotes finality. 

102.67 Proceedings Before the 

Regional Director; Further Hearing; 

Action by the Regional Director; 

Appeals From Actions of the Regional 

Director; Statement in Opposition; 

Requests for Extraordinary Relief; 

Notice of Election; Voter List 

A. Specification of Election Details in 

Decision and Direction of Election; 

Notice of Election 

An election cannot be conducted until 

the details of the election are set and the 

Notice of Election advises the 

employees of when, where, and how 

they may vote. Prior to the 2014 rule, 

these details were resolved after the 

decision and direction of election issued 

in sometimes lengthy telephone 

consultations and negotiations with the 

various parties.130 To eliminate one of 

the ‘‘choke points’’ in getting to the 

election, the 2014 rule required that the 

parties state their preferences on the 

election details in their petitions and 

Statement of Position, and further 

provided that the hearing officer would 

solicit the parties’ positions on the 

election details again, prior to the close 

of the hearing.131 Because the parties 

will already have twice stated their 

positions on the election details, this 

rule directs that election directions will 

ordinarily specify the type, date(s), 

time(s), and location(s) of the election 

and the eligibility period and that the 

regional director will ordinarily 

transmit the Notice of Election 

simultaneously with the direction of 

election. By consolidating the decision 

and direction of election with the 

specification of the election details in 

the ordinary course, the Board 

eliminates the need for wasteful postdecision consultation and, in turn, can 

more expeditiously resolve questions of 

representation. Additionally, providing 

this information with the direction of 

election promotes greater transparency 

and certainty than if dissemination of 

this important information is delayed. If 

necessary, regional directors remain free 

to consult with the parties again about 

election details after directing an 

election. 

This amendment thus reverts to the 

standard of the 2014 rule 132 and 

rescinds the 2019 rule’s amendment that 

merely provided that the regional 

director ‘‘may’’ specify the election 

details in the decision and direction of 

election and effected a ‘‘shift in 

emphasis’’ by providing that the 

regional director ‘‘retains discretion to 

continue investigating these details after 

directing an election and to specify 

them in a subsequently-issued Notice of 

Election.’’ 133 The Board does not doubt 

the discretion of the regional director to 

work out election details, if necessary, 

after directing an election, but there is 

no compelling reason to ‘‘shift’’ the 

ordinary course from how the 2014 rule 

established it. The 2019 Board admitted 

that ‘‘the regional director should 

ordinarily be able to provide election 

details in the direction of election.’’ 134

Determining election details as an 

entirely separate process after directing 

the election is, ordinarily, a step that 

adds unnecessary delay and inefficiency 

to the representation case process. 

Accordingly, like other aspects of this 

rule, this is another instance where we 

amend the rule to make it responsive to 

the ordinary course scenario, with a 

safety valve responsive to the exception. 

Doing so causes no discernible 

detriment and furthers the goals of 

expeditiously and efficiently processing 

representation cases and promoting 

transparency and certainty. 

B. Elimination of the 20-Business Day 

Waiting Period Between Issuance of the 

Decision and Direction of Election and 

the Election 

Both the 2014 rule and the 2019 rule 

provided that regional directors shall 

schedule elections for the earliest date 

practicable.135 However, the 2019 rule 

imposed a 20-business day (or 28- 

calendar day) waiting period before an 

election can be held following issuance 

of a decision and direction of election 

to permit the Board to rule on any 

request for review that may be filed.136

The instant rule rescinds this 

amendment that, by definition, 

substantially delays the election that is 

designed to answer the question of 

representation. 

The scheduling of an election for the 

earliest date practicable furthers the 

Board’s statutory mission to 

expeditiously process representation 

cases. A mandated waiting period— 

which effectively stays the election in 

every contested case for a set period of 

time—is, as a threshold statutory matter, 

in tension with Congress’s instruction in 

Section 3(b) of the Act that the grant of 

review of a regional director’s action 

‘‘shall not, unless specifically ordered 

by the Board, operate as a stay of any 

action taken by the regional 

director.’’ 137 Moreover, as a policy 

matter, a waiting period necessarily 

delays the election, which is designed to 

answer the question of representation. 

Thus, by eliminating it, the Board 

eliminates an unnecessary barrier to the 

fair and expeditious resolution of 

questions concerning representation and 

thereby furthers a statutory goal. And 

because, as the Board has noted 

elsewhere, bargaining takes place in the 

shadow of the law such that some 

parties use the threat of a pre-election 

hearing and the result of a waiting 

period to extract concessions 

concerning election details, the impact 

of the earliest date practicable standard 

is also felt in the more common context 

of a stipulated election. 

Rescinding the mandatory waiting 

period—which, on its terms, exists 

solely to permit the Board to rule on any 

request for review that may be filed with 

10 business days of a direction of 

election 138—is also responsive to the 

fact that requests for review of a 

decision and direction of election are 

filed in only a small percentage of cases, 

are granted in only a small percentage 

of the cases in which they are filed, and 

result in orders staying elections in 

hardly any cases at all.139 And, as a 

result of another amendment from the 


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140 84 FR at 69546 (‘‘We acknowledge here that 

the 20-business-day period will detract from how 

promptly elections were—or at least could be— 

conducted under the 2014 amendments.’’). 

141 79 FR at 74410. 

142See 84 FR at 69582 & fns.244–247 (thenMember McFerran, dissenting) (citing data showing 

stability in relevant indicia of finality, certainty, 

fairness, accuracy, transparency, and uniformity). 

143See, e.g., ABC of Texas, 826 F.3d at 226–227 

(noting that the Act does not mandate a specified 

waiting period prior to the election). 

144 Information produced from searches in the 

Board’s NxGen case processing software shows 

post-2014 rule medians of 11 to 12 calendar days 

from issuance of a decision and direction of 

election to the election itself in FYs 2016–2017. 

This shows that elimination of the waiting period 

enabled the Board to conduct elections more 

quickly because the waiting period would have 

prevented the Board from conducting elections so 

soon after issuance of the decision and direction of 

election. 

145 84 FR at 69545. 

146 Id. 

147For instance, information produced from 

searches in the Board’s NxGen case processing 

software shows that in fiscal year 2019—the last full 

year the 2014 rule was in effect—there were 1,179 

total elections and 128 cases with a decision and 

direction of election but only 47 with a request for 

review. So a request for review was filed in only 

36.72% of cases with a directed election and in 

only 3.99% of cases with an election. 

148Moreover, as noted above, although the 

waiting period, on its terms, applies only to 

directed elections, the threat of a directed election 

and the attendant waiting period may also be used 

to extract concessions concerning election details in 

an election agreement. 

149For instance, information produced from 

searches in the Board’s NxGen case processing 

software shows that in fiscal year 2019—the last full 

year that all provisions of the 2014 rule were in 

effect—among the 47 cases with a request for 

review, only 2 requests for review were granted and 

neither resulted in a reversal, so a request for 

review was granted in only 1.56% of directed 

election cases and warranted reversal in 0% of 

directed election cases. 

150Rather than defend the 2019 Board’s 

contemporaneous justifications for its waiting 

period provision, our dissenting colleague espouses 

a new rationale: that the 20-business day waiting 

period is ‘‘critical’’ to provide an adequate ‘‘period 

of time during which employees can become ‘fully 

informed’ voters.’’ The 2019 Board did not offer this 

‘‘fully informed voters’’ justification for imposing a 

20-business day waiting period and instead 

explained that ‘‘this period is designed ‘to permit 

the Board to rule on any request for review which 

may be filed[.]’ ’’ See 84 FR at 69545. In any event, 

the 2014 Board comprehensively explained why all 

of the changes made in that rule to which we 

return, including preventing the 20-business day 

waiting period from taking effect, do not prevent 

employees from becoming fully informed about 

their decision whether to unionize. See infra Part 

V (summarizing the 2014 rule’s explanation, 79 FR 

at 74318–74326, 74423–74424, that the changes in 

the aggregate would continue to provide a 

Continued 

2014 rule that the 2019 rule did not 

change, parties are free to file requests 

for review even after completion of an 

election. Accordingly, even if a waiting 

period could, in some instances, enable 

the Board to resolve requests for review 

prior to elections taking place, there is 

no meaningful benefit to doing so and 

certainly no benefit large enough to 

outweigh the cost of added delay in 

every other case. And a standard that 

directs a regional director to schedule 

an election on the earliest date 

practicable gives sufficient flexibility to 

allow for an extended delay between the 

direction and conduct of election in the 

rare case when such delay is necessary. 

The 2019 Board admitted that its 

mandated waiting period would run 

counter to the statutory goal of 

expeditious resolution of representation 

cases.140 Yet it imposed the change 

anyway, again speculating that 

imposing this substantial delay would 

promote other interests. There is no 

evidence that it would have done so, 

and even if such evidence existed, we 

make a different judgment of policy 

priorities. After enactment of the 2014 

rule, which eliminated a similar 25- 

calendar day waiting period that had 

been mandated previously,141 the data 

show that elections have been no less 

final, certain, fair, accurate, transparent, 

or uniform.142 The 2014 rule’s 

elimination of the waiting period 

between issuance of the direction of the 

election and the election was upheld by 

the courts 143 and enabled the Board to 

hold elections more quickly after the 

decision and direction of election issued 

than it was prior to the 2014 rule.144

Thus, eliminating the mandated waiting 

period expedites the processing of 

representation cases with no meaningful 

drawback in any other important policy 

interest. 

We further note that the 2019 Board 

conceded that ‘‘[i]n many respects,’’ its 

waiting period amendment ‘‘goes handin-hand with [its] amendment 

permitting litigation of eligibility and 

inclusion issues at the pre-election 

hearing and serves the same policy 

interests.’’ 145 Thus, the 2019 Board 

argued that ‘‘providing a period before 

the election during which parties can 

file and the Board can rule on requests 

for review permits [those eligibility and 

inclusion] issues to be definitively 

resolved prior to the election (or at least 

prior to the counting of the votes), 

thereby promoting finality and 

certainty.’’ 146 But this rule rescinds the 

2019 amendment that provided that 

individual eligibility or inclusion issues 

normally will be litigated at the preelection hearing and resolved by the 

regional director prior to the election, 

making the corresponding waiting 

period superfluous. 

The 2019 Board’s speculations that a 

mandated month-long waiting period 

would promote finality, certainty, 

uniformity, transparency, and fairness 

and accuracy are unavailing for 

additional reasons. First, in the vast 

majority of representation cases, the 

parties are able to reach an election 

agreement that necessarily precludes the 

possibility of a pre-election request for 

review. In the majority of the 

comparatively small percentage of 

contested cases, parties choose not to 

file a request for review.147 In all those 

cases, the mandated month-long waiting 

period serves no purpose other than to 

add needless delay to the process.148

And even in the minority of cases where 

a party files a request for review prior 

to the election, there is no guarantee 

that the Board, given resource 

constraints and other responsibilities, 

will be able to rule on the request 

within the waiting period, which, again, 

means that a waiting period may cause 

needless delay. And then, even 

assuming the Board can resolve the preelection request within the waiting 

period, historical practice shows that 

the Board rarely reverses a regional 

director’s pre-election decisions,149 and 

so, once again, the mandated delay will 

have served little beneficial purpose. 

In sum, there is a very small number 

of cases where: (1) a party files a request 

for review before the election; (2) the 

Board rules on the request for review 

prior to the election; and (3) the Board’s 

ruling reverses the regional director’s 

decision. That means that the 2019 

rule’s waiting period would cause delay 

in every contested case (and every 

stipulated election case—comprising the 

vast majority of the Board’s 

representation case docket—whose 

terms are impacted by parties’ 

estimations of how much time would 

transpire before the election if the 

nonpetitioning party insisted on a preelection hearing) in order to claim a 

nebulous and unproven enhancement of 

finality, certainty, uniformity, 

transparency, and fairness and accuracy 

in the tiny number of cases that meet 

these three uncommon conditions. We 

do not judge that tradeoff to be 

worthwhile. Delay for no benefit in the 

vast majority of cases would not be 

offset by improved finality, certainty, 

uniformity, transparency, and fairness 

and accuracy in a tiny number of cases. 

Accordingly, to eliminate an 

unnecessary barrier to the fair and 

expeditious resolution of questions of 

representation, with the necessary 

flexibility for regional director 

adjustment to the circumstances of any 

particular case, this rule rescinds the 

month-long waiting period and directs 

regional directors to schedule an 

election for as soon as practicable after 

the direction of an election.150


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meaningful opportunity for campaign speech before 

the election). 

151 29 CFR 102.69(c)(1)(iii) (Dec. 18, 2019). 

152 84 FR at 69556. 

153Our dissenting colleague contends that we 

‘‘minimize the complexity of representation cases’’ 

by eliminating briefing as of right. He overlooks that 

in complex cases, in both the pre- and post-election 

hearing context, the regional director or hearing 

officer has discretion to allow briefing. 

154Senate Committee on the Judiciary, 

comparative print on revision of S. 7, 79th Cong., 

1st Sess. 7 (1945). 

155A.J. Tower, 329 U.S. at 331. 

156See 79 FR at 74318–74326, 74423–74424. 

157See id. at 74320 (quoting NLRB v. Gissel 

Packing Co., 395 U.S. 575, 603 (1969)). 

158See id. at 74321–74322. 

159See id. at 74322–74323. 

160See RadNet, 992 F.3d at 1122 (quoting 79 FR 

at 74318); ABC of Texas, 826 F.3d at 227 (same). 

161Notably, our dissenting colleague fails to 

present any evidence of an election in which 

employees did not have adequate time to become 

informed about the decision they were making. Put 

simply, under the procedures to which we return, 

representation cases will clearly be resolved more 

expeditiously and there is no evidence that 

employees will be inadequately informed. 

162See, e.g., 84 FR at 69528 (‘‘For contested cases, 

several provisions of the final rule will, both 

individually and taken together, result in a 

lengthening of the median time from the filing of 

a petition to the conduct of an election.’’); AFL–CIO, 

57 F.4th at 1047 (‘‘In the extensive preamble to the 

102.69 Election Procedure; Tally of 

Ballots; Objections; Certification by the 

Regional Director; Hearings; Hearing 

Officer Reports on Objections and 

Challenges; Exceptions to Hearing 

Officer Reports; Regional Director 

Decisions on Objections and Challenges 

A. Briefing Following Post-Election 

Hearing 

To further enhance the expeditious 

resolution of questions concerning 

representation without any 

countervailing decline in other policy 

interests, this rule also rescinds the 

2019 rule’s blanket entitlement for 

parties to file post-hearing briefs with 

the hearing officer in all cases.151

Accordingly, this rule reverts to what 

the 2019 Board conceded was the 

Board’s ‘‘historical[ ]’’ practice of 

permitting briefing only at the 

discretion of the hearing officer.152

Certification of the results of a Boardconducted election cannot issue until 

any determinative challenges or election 

objections are resolved. Thus, by giving 

parties an entitlement of 5 business 

days—and up to an additional 10 

business days upon a showing of good 

cause—to file briefs following the close 

of the post-election hearing, the 2019 

rule built in another layer of delay. 

Rescinding this blanket entitlement for 

briefing thus further reduces delay and 

thereby promotes finality and, by 

avoiding another round of briefing, 

saves the Board and the parties 

resources expended on repetitive 

argument. The parties will already have 

had a chance to present argument on the 

challenges and objections at the hearing 

itself. Many of these challenges and 

objections issues are straightforward 

and frequently reoccurring. Hearing 

officers thus gain expertise in resolving 

them and only rarely need to resort to 

briefing to do so. When such briefing 

would be helpful, they can allow it.153

Additionally, under the 2014 rule 

provisions which we reinstate, parties 

still have a right to file briefs with the 

regional director when they file 

exceptions to the hearing officer’s 

recommended disposition of postelection objections and determinative 

challenges, and parties also have a right 

to file briefs with the Board in support 

of any request for review of the regional 

director decision on objections and 

determinative challenges. Accordingly, 

another round of briefing following the 

close of the post-election hearing is not 

necessary. 

V. Response to the Dissent 

Our dissenting colleague makes a 

number of provision-specific arguments 

that we have rebutted in the discussion 

above. Generally, these arguments assert 

that our reinstatement of some aspect of 

the 2014 rule will have various negative 

consequences. But those arguments 

suffer from the same defect as the 

rationale for the 2019 rule itself: They 

lack factual support, notwithstanding 

that the 2014 rule was in effect for five 

years. If there were negative 

consequences arising from it, our 

dissenting colleague should be able to 

demonstrate as much. 

The balance of the dissent makes two 

broader arguments, each claiming that 

we have failed to engage in reasoned 

decision making. Thus, our colleague 

argues (1) that we have improperly 

prioritized expedition in the 

representation case process at the 

supposed expense of employees being 

fully informed and (2) that we have 

improperly considered representation 

case data that was likely impacted by 

the COVID–19 pandemic. As we explain 

below, each of these arguments misses 

the mark. 

The Board has a statutory duty to 

ensure that representation cases are 

resolved expeditiously. As we have 

noted, Congress has described ‘‘the 

exceptional need for expedition’’ in 

representation cases,154 and the 

Supreme Court has said that we ‘‘must 

adopt policies and promulgate rules and 

regulations in order that employees’ 

votes may be recorded accurately, 

efficiently and speedily.’’ 155 By 

effectively returning the Board’s 

representation case procedures to those 

that were in effect for five years under 

the 2014 rule, we enhance the speed 

with which representation cases will be 

resolved and, in doing so, we act 

consistent with the policy of Congress, 

as recognized by the Supreme Court. 

In fulfilling that statutory duty, we 

have not sacrificed employees’ ability to 

become fully informed voters. As 

extensively explained in the 2014 rule’s 

preamble, the changes to the Board’s 

election procedures will continue to 

provide a meaningful opportunity for 

campaign speech before the election, 

and thus a sufficient opportunity for 

employees to become fully informed 

voters.156 Several factors mitigate any 

arguable problems introduced by a 

shortened campaign period flowing 

from the 2014 rule’s expedited case 

processing. First, union organizing 

campaigns typically start well before the 

representation case process is ever 

triggered by the filing of a petition with 

the Board, so employees typically start 

becoming informed about their decision 

whether to be represented by a union 

well before the representation case 

process is triggered. Moreover, as 

recognized by the Supreme Court, union 

organizing campaigns rarely catch 

employers by surprise and so employers 

too can begin informing employees 

about their union views before a 

petition is filed.157 ‘‘[E]ven in the 

absence of an active organizing 

campaign, employers in nonunionized 

workplaces may and often do 

communicate their general views about 

unionization to both new hires and 

existing employees’’ through materials 

like handbooks and orientation 

videos.158 In addition, employers are 

able to rapidly disseminate their 

campaign message post-petition.159

And, as recognized by reviewing courts 

turning back challenges to the 2014 rule, 

regional directors will take into account 

parties’ ‘‘opportunity for meaningful 

speech about the election’’ in setting an 

election date.160 Our dissenting 

colleague disregards this because he has 

a different policy preference, which, as 

explained, we reject.161

The dissent’s other argument— 

questioning the data we have 

considered—is equally unfounded. Even 

putting aside the data which support 

our policy choice here, we would still 

choose to substantially rescind the 2019 

rule and reinstate the 2014 rule. As we 

have explained above, the 2019 Board 

necessarily acknowledged it was adding 

time to the representation case 

process 162 and justified this change 


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2019 Rule . . . the Board repeatedly acknowledges 

that its changes will result in longer waits before 

elections relative to the 2014 Rule.’’). 

163See, e.g., supra fn.7, fn.8, fn.17, fn.43, fn.44, 

fn.45, fn.61, fn.104, fn.107, fn.108, fn.110, fn.128, 

fn.139, fn.144, fn.147, fn.149. 

Indeed, we note that, because some of the 2019 

rule provisions—regarding the scope of the preelection hearing and the waiting period between 

issuance of the decision and direction of election 

and the election itself—did not go into effect and 

because the 2019 rule stated that those provisions 

largely restored the pre-2014 rule status quo (84 FR 

at 69525, 69539–69542, 69544–69545), the relevant 

comparison with respect to those provisions is not 

between the pre-2019 rule and the post-2019 rule 

COVID–19 periods, but between the periods before 

and after the implementation of the 2014 rule. 

164Notably, the 2019 Board promulgated its rule 

without relying on any data at all. See 84 FR at 

69557 (‘‘[O]ur reasons for revising or rescinding 

some of the 2014 amendments are [ ] based on nonstatistical policy choices.’’). If those choices 

(endorsed by our dissenting colleague then and 

now) were not arbitrary and capricious, then our 

reasoned decision to give some weight to recent 

data cannot be infirm. See AFL–CIO, 57 F.4th at 

1046–1048 (rejecting challenge that the 2019 rule 

was arbitrary and capricious as a whole due to the 

Board’s ignoring data and not even citing anecdotal 

evidence of problems with the 2014 rule). 

165Hereinafter, the ‘‘2014 Rule.’’ 

166Hereinafter, the ‘‘2019 Rule.’’ For ease of 

reference, I will refer to the revocation of the 2019 

Rule, even though my colleagues are only revoking 

those provisions that remain in effect following the 

decision in AFL–CIO v. NLRB, 57 F.4th 1023 (D.C. 

Cir. 2023). 

167As will be discussed infra, the Supreme Court 

has already recognized that pre-election 

determination of these issues supports the Act’s 

interest in efficient and timely elections, in part 

because parties that are unhappy with the results 

of elections will not have the opportunity to delay 

the finalization of results by litigating these issues 

later. 

168The majority characterizes the 2019 Rule as 

‘‘impos[ing]’’ a 20-business day waiting period. If 

that is so, then the Board had been ‘‘imposing’’ a 

20-business day waiting period on parties to 

elections for a long time prior to the 2014 Rule, 

which for the first time prohibited regional 

directors from establishing any waiting period 

whatsoever. 

169 Motor Vehicles Mfrs. Assn. of United States, 

Inc. v. State Farm Mut. Automobile Ins. Co., 463 

U.S. 29 (1983). 

with speculation that that cost of this 

added time would be offset by policy 

benefits like increased fairness, 

accuracy, transparency, uniformity, and 

finality. We make a different policy 

calculation, concluding that the cost of 

the added delay in the 2019 rule is not 

offset by benefits related to other values. 

There was no evidence, pre-COVID–19, 

supporting the claimed benefits of the 

2019 rule, and that absence of evidence 

supports our decision to substantially 

rescind the 2019 rule and return to the 

2014 rule. Our dissenting colleague’s 

charge that the data from the period of 

the COVID–19 pandemic is tainted is 

entirely irrelevant to this aspect of our 

analysis. 

Our dissenting colleague’s argument 

also disregards the fact that, in addition 

to the more recent data we cite, our 

policy choice is supported by a 

substantial amount of data from both the 

period immediately prior to the effective 

date of the 2014 rule and the period 

when the 2014 rule was in effect.163

None of this data was impacted by the 

effects of the pandemic, and it supports 

the view that the 2014 rule, to which we 

substantially return, allows for the 

expeditious processing of representation 

cases while ensuring fairness, accuracy, 

transparency, uniformity, and finality. 

As for the more recent data from fiscal 

years during the COVID–19 pandemic, 

that data only provides further 

confirmatory support for our policy 

judgment. We have fully acknowledged 

that some of the recent delay in 

representation cases is likely 

attributable to the effects of the COVID– 

19 pandemic, but, as we have explained, 

we believe that some of the delay, as 

borne out in the data, is also due to the 

2019 rule, given the 2019 Board’s 

concession that its rule would lengthen 

the representation case process. 

Moreover, as we have demonstrated 

above, the recent data also provides 

confirmatory support for the conclusion 

that the 2019 rule has not demonstrably 

improved fairness, accuracy, 

transparency, uniformity, and finality. 

As we have explained, the 2019 Board 

never provided any evidence that there 

was a problem related to these policy 

values under the 2014 rule. Nor, 

examining pre-COVID–19 data, have we 

found such evidence. That the recent 

data is consistent with those prior 

conclusions simply confirms that our 

policy judgment is more than amply 

supported.164

VI. Dissenting View of Member Kaplan 

Member Marvin E. Kaplan, dissenting. 

A. Introduction 

My colleagues reinstate the 

Representation—Case Procedures Rule 

that the Board promulgated in 2014 165

and revoke the remaining aspects of the 

Representation-Case Procedures Rule 

promulgated by the Board in 2019.166 In 

doing so, my colleagues echo the 

rationale in the 2014 Rule with 

significant emphasis on an 

‘‘observation’’ made by the Supreme 

Court in NLRB v. A.J. Tower Co., 329 

U.S. 324 (1946), that ‘‘the Board must 

adopt policies and promulgate rules and 

regulations in order that employees’ 

votes may be recorded accurately, 

efficiently, and speedily.’’ My 

colleagues’ emphasis, however, is based 

on a fundamentally flawed premise— 

that speed is more important than any 

other consideration in determining 

whether the Board is fulfilling its duty 

to protect one of the fundamental rights 

protected by the Act: the right of 

employees to choose whether or not to 

be represented by a union. Further, 

nothing in the A.J. Tower decision 

suggests that the Court was urging the 

Board to place expediency over all other 

considerations in determining whether 

the Board’s rules met the statutory goal 

of Section 9(b). 

As just one example, the Board has 

expressly recognized that ‘‘ensuring that 

all employees are fully informed about 

the arguments concerning 

representation and can freely and fully 

exercise their Section 7 rights’’ is an 

important statutory right. Mod Interiors, 

324 NLRB 164, 164 (1997) (emphasis 

added); accord Excelsior Underwear, 

Inc., 156 NLRB 1236, 1240 (1966) 

(finding that ‘‘an employee who has had 

an effective opportunity to hear the 

arguments concerning choice is in a 

better position to make a more fully 

informed and reasonable choice’’). Yet, 

my colleagues’ reinstatement of the 

2014 Rule unquestionably values quick 

elections over fully informed voters. For 

example, by delaying the determination 

of questions of eligibility, supervisory 

status, and unit scope until after the 

election, the 2014 Rule deprives 

employees of the ability to understand 

which coworkers would be included in 

the unit they are voting on, and which 

would not.167 Similarly, by revoking the 

2019 Rule’s reinstatement of the 20- 

business day waiting period between 

the issuance of the decision and 

direction of election and the election 

and replacing it with the mandate in the 

2014 Rule that regional directors must 

schedule elections for ‘‘the earliest date 

practicable,’’ the majority has drastically 

limited the period of time during which 

employees can become ‘‘fully informed’’ 

voters.168 By placing an inordinate 

emphasis on speedy elections, my 

colleagues have failed to consider the 

extent to which these rules will have a 

negative effect on the very individuals 

the Act was meant to protect in 

representation elections—the voters. 

One is left to wonder how much the 

voters will actually benefit from the 

requirements that elections be held as 

quickly as possible when they find 

themselves exercising this right without 

fully understanding the arguments 

concerning representation and the ways 

in which their vote may affect them. 

Further, my colleagues are revoking 

the 2019 Rule before there has been any 

opportunity to obtain relevant data 

pertaining to the effects of that rule. In 

State Farm 169 the Supreme Court held 

that, in order for a rulemaking to survive 

the ‘‘arbitrary and capricious’’ standard, 


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170My colleagues contend that their ‘‘reasoned 

decision to give some weight to recent data cannot 

be infirm’’ because ‘‘the 2019 Board promulgated its 

rule without relying on any data at all.’’ The 2019 

Rule relied on a reasoned balancing of competing 

statutory and policy interests—interests not 

adequately considered by the 2014 Rule. To state 

the obvious, relying on flawed data as justification 

for overturning the 2019 Rule is not the same thing. 

171 In fiscal years 2015 through 2019, the 

percentage of mail-ballot elections ranged from 

10.3% to 12.8%. 

172See, e.g., Quinn Klinefelter, U.S. Postal 

Service Struggles To Deliver Mail After Holidays 

Amid Pandemic, NPR (Jan. 22, 2021, 7:01 p.m.), 

https://www.npr.org/2021/01/22/959273022/theresno-end-in-sight-mail-delivery-delays-continueacross-the-country. 

173Remarkably, my colleagues assert that even 

though some delay is ‘‘likely attributable to the 

effects of the COVID–19,’’ they ‘‘are confident that 

any pandemic-related delay in the processing of 

representation cases has been compounded by the 

effects of the 2019 Rule.’’ They further assert that 

‘‘the delay would have been even greater had 

certain of its provisions not been enjoined.’’ With 

due respect to my colleagues, pure speculation of 

what the data might have been had the pandemic 

not drastically changed the landscape in which 

elections were held does not constitute a reasoned 

basis for revoking the 2019 Rule. 

174Accordingly, my colleagues’ assertion that I 

am not ‘‘defend[ing] the 2019 Board’s 

contemporaneous justifications for its waiting 

period provision’’ is simply false. I am choosing not 

to repeat all the analytical justifications set forth in 

the 2019 Rule because, in my view, doing so here 

serves no purpose other than redundancy. 

an agency must ‘‘examine the relevant 

data and articulate a satisfactory 

explanation for its action . . . .’’ Id. at 

43 (emphasis added). Given the 

extraordinary effects of the COVID–19 

pandemic on the Board’s election 

processes for the short period of time in 

which the 2019 Rule has been in effect, 

however, relevant data—i.e., data based 

on elections not conducted under 

extraordinary circumstances—is not 

available. Therefore, no one is in a 

position as of yet to make any datadriven conclusions regarding the 

efficacy of the Rule. Simply put, any 

attempt to challenge the 2019 Rule 

based on data is premature. Because my 

colleagues cannot identify any relevant 

data that would enable the effects of the 

2019 to be compared with data from the 

years following the 2014 Rule, I do not 

believe that my colleagues’ repromulgation of the 2014 Rule can 

survive the ‘‘arbitrary and capricious’’ 

standard.170

B. The Majority’s Decision To Revoke 

the 2019 Rule and Repromulgate 

Corresponding Sections From the 2014 

Rule Is Arbitrary and Capricious in 

Violation of the Administrative 

Procedure Act Because the Decision Is 

Not Based on Representative Data 

My colleagues repeatedly state that 

the Board’s internal data regarding the 

processing of representation petitions 

after the implementation of the 2019 

Rule demonstrate that the rule 

lengthened election times without any 

appreciable improvement in the other 

interests upon which the Board relied in 

promulgating that rule. In doing so, my 

colleagues chiefly rely on data taken 

from the first two years that the 2019 

Rule was effective. However, the 

COVID–19 pandemic began shortly after 

the Board implemented the 2019 Rule. 

It cannot reasonably be disputed that 

the pandemic caused the Board to 

conduct elections in a manner so 

different from the norm that any data 

derived therefrom, especially with 

regard to the time that it took to hold 

elections, is not representative data. 

Accordingly, because that data does not 

exist, my colleagues fail to establish that 

their decision to revoke the 2019 Rule 

is based on any relevant data, as 

required by the Supreme Court. 

‘‘Due to the extraordinary 

circumstances related to the pandemic,’’ 

the Board was forced to temporarily 

suspend elections in March 2020 in 

order to ‘‘ensure the health and safety of 

Board employees as well as members of 

the public involved in the election 

process.’’ Aspirus Keweenaw, 370 NLRB 

No. 45, slip op. at 3 (2020) (internal 

quotations omitted). When elections 

resumed, the Board flipped existing 

election standards on their head. 

Longstanding Board law favors 

conducting manual Board elections, and 

that preference is reflected in the 

percentage of mail ballot elections 

conducted during the years immediately 

following the 2014 Rule.171 During 

those years, mail-ballot elections 

represented less than 13% of all 

elections. In the fiscal years following 

the 2019 Rule, however, mail-ballot 

elections represented an unprecedented 

percentage of Board elections: in fiscal 

year 2020, 45% of elections were held 

by mail ballot; in 2021, the percentage 

was a staggering 83.9%; and in 2022, 

77.6% of elections were conducted by 

mail-ballot election. My colleagues 

attempt to downplay the dramatic effect 

that this had on the time frames within 

which elections took place under the 

2019 Rule, but they are ignoring 

undisputed facts. Not only do mailballot elections take longer than manual 

elections as a general rule, but the 

regional offices also had to factor 

additional mailing time into the election 

deadlines due to the reliability issues 

plaguing the United States Postal 

Service.172

Despite the truly unprecedented 

circumstances faced by the Board in 

conducting elections after the 

implementation of the 2019 Rule, my 

colleagues attempt to rely on data from 

that period, acknowledging only that the 

effects of the COVID–19 pandemic may 

have affected the results. For example, 

the majority notes that 88.8% and 

90.7% of representation cases were 

resolved within 100 days during the last 

2 full years, respectively, of the 2014 

Rule while only 82.3% and 85.4% were 

resolved within that time period during 

the first 2 years of the 2019 Rule. Again, 

any increase in processing times is 

easily, and indeed logically, attributable 

to the effects of the pandemic on the 

Board’s election processes.173 They 

further observe, among other things, that 

the reversal of regional director 

decisions and directions of elections, 

the number of election objections and 

determinative challenges, and the 

number of rerun elections all remained 

relatively unchanged under the 2019 

Rule. Even assuming that this data 

could be considered representative data, 

the fact that the effects of the 2019 Rule 

were consistent with the effects of the 

2014 Rule does not establish a 

reasonable justification for revoking the 

2019 Rule. 

Because no representative data yet 

exists with regard to the effect on the 

2019 Rule on election processes, there is 

no data to support my colleagues’ 

conclusion that the 2019 Rule is a 

‘‘failure.’’ Nor is there evidence to 

suggest that the ‘‘increased delay 

apparently attributable to the 2019 

[R]ule has [not] been offset by 

meaningful improvements in furthering 

the interests cited by the Board.’’ 

Accordingly, my colleagues have failed 

to establish that data justifies their 

decision to revoke the 2019 Rule. 

C. The Decision To Revoke the 2019 

Rule and Repromulgate Corresponding 

Sections From the 2014 Rule Is 

Arbitrary and Capricious in Violation of 

the Administrative Procedure Act 

Because the Majority Fails To Provide a 

Reasoned Basis for Its Amendments 

As a participant in the promulgation 

of the 2019 Rule, I have already 

explained, at length, why the revocation 

of the 2014 Rule was necessary and why 

the 2019 better effectuated the purposes 

of the Act. See 84 FR at 69526–69587. 

My additional comments in this dissent 

are not meant to replace those 

explanations but rather to supplement 

them.174

1. Scheduling of Pre-Election Hearing 

My colleagues reinstate the 2014 

Rule’s significant contraction of the time 

period between the filing of a petition 


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175The 2019 Rule used business days instead of 

calendar days to reduce confusion and promote 

uniformity and transparency. 

176As discussed later, these time limitations 

could result in an employer being required to 

undertake all the work necessary to file a Statement 

of Position in three and a half business days. 

177The 2014 Rule later refers to a ‘‘1997 Report 

of Best Practices Committee—Representation 

Cases.’’ See, e.g., 79 FR at 74427 n.528. I am 

assuming that the references are to the same report. 

178 In asserting that the 2014 Rule’s failure to 

adopt the Report’s ‘‘best practice’’ in this area was 

not arbitrary, my colleagues rely on post-hoc 

speculation. The 2014 Rule, however, did not rely 

upon my colleagues’ explanation for its decision to 

depart from the ‘‘best practice’’ set forth in the 

Report. Accordingly, such post-hoc speculation 

hardly establishes that the 2014 Rule’s selection of 

eight days from notice of the hearing—which was 

not the ‘‘best practice’’ cited in the Report—was not 

arbitrary. 

179Quoting the 2014 Rule, my colleagues also 

observe that a ‘‘ ‘model opening letter in 1999’—and 

a model letter is an attempt to convey best 

practices—’indicated that the hearing should open 

no later than seven days after service of the 

notice.’ ’’ Again, this does not answer the question 

of why the 2014 Rule determined that eight days 

after the notice of the hearing was the proper limit. 

180Contrary to the majority’s representation, only 

one court has considered the issue of whether the 

notice provided to employers before the pre-hearing 

election satisfied due process. UPS Ground Freight 

v. NLRB, 921 F.3d 251 (D.C. Cir. 2019) (finding that 

employer’s due process rights were not violated by 

receiving 11 days notice before the pre-election 

hearing). The other two cases cited by the majority 

involved facial challenges to the 2014 Rule. In both 

of those cases, the courts found that they could not 

strike down the 2014 Rule on due process grounds 

because there was no showing ‘‘that an employer 

Continued 

to the pre-election hearing. Specifically, 

the pre-election hearing will now 

generally be scheduled to open eight 

calendar days—which, as my colleagues 

note, could result in a period of only 

five business days should a holiday fall 

within that period—from service of the 

notice of hearing compared to the 

fourteen business days 175 provided for 

in the 2019 Rule. I have already 

addressed the rationale for replacing the 

eight-calendar day period with the 

fourteen-day period in the 2019 Rule, so 

I will not repeat those reasons here. 

However, I note that my colleagues have 

utterly failed to establish a reasoned 

basis for revoking the 2019 Rule and 

reinstating the somewhat draconian 

time limitations put in place by the 

2014 Rule. 

Their explanation for reimposing such 

a strict limitation on the time available 

to parties to prepare for the hearing and 

file a statement of position 176 is limited 

to three rationales. First, they state that 

the eight-day period is necessary 

because a longer time period would 

result in elections taking longer. In 

addition to being obvious, relying on 

that factor alone—as opposed to 

weighing carefully the other important 

interests at stake—is hardly a reasoned 

basis for revoking the 2019 Rule. As 

mentioned above, conducting elections 

as soon as possible is neither mandated 

by the Act nor by the Supreme Court. 

Second, my colleagues cite Croft Metals, 

Inc., 337 NLRB 688 (2002) as a reasoned 

basis for reinstating the 2014 Rule. In 

that case, after finding that the three 

days of notice provided prior to the 

Employer was insufficient, the Board 

opined that ‘‘a minimum of five 

[business] days notice was sufficient.’’ 

Id. at 688. What my colleagues fail to 

note, however, is that Croft Metals, a 

case that issued more than twenty years 

ago, has never been cited in another 

Board case. In my view, a single Board 

case hardly provides a reasoned basis 

for establishing five business days as the 

mandatory—not minimum—period of 

notice. For that matter, that case does 

not provide a reasoned basis for 

revoking the 2019 Rule because the 

2019 Rule is consistent with Croft 

Metals. Finally, my colleagues adopt the 

rationale set forth in the 2014 Rule— 

that the eight-day period ‘‘codified best 

practices in some regions.’’ (Emphasis 

added.) In addition to being misleading, 

this rationale does not provide sufficient 

justification for limiting the notice 

provided to parties before the hearing to 

eight days. 

Throughout the 2014 Rule, the Board 

justifies its significant overhaul of the 

Board’s representation rules by saying 

that the amendments reflect ‘‘best 

practices.’’ In fact, the 2014 Rule uses 

this phrase at least ten times without 

providing any basis whatsoever for 

concluding that the amendments being 

proposed have been found to be ‘‘best 

practices’’ by anyone other than the 

Board in writing its rules. See, e.g., 79 

FR at 74308, 74309, 74315, 74353, 

72363, 74367. After all these mentions, 

the 2014 Rule finally introduces a 

source for determining ‘‘best 

practices’’—a ‘‘1997 Report of Best 

Practices Committee.’’ 177 Id. at 74373. 

Thereafter, the 2014 Rule cites to that 

Report frequently as evidence that 

aspects of the rule are consistent with 

what was considered a ‘‘best practice.’’ 

See id. at 74401 n.434; 74415 n.470; 

74416; 74427 n.528. Unlike other 

aspects of the 2014 Rule, however, the 

Board did not adopt the ‘‘best practice’’ 

set forth in the Report in establishing 

the deadline for scheduling the preelection hearing. The 1997 Report 

indicated that, as a best practice, 

hearings should open between ten and 

fourteen days after the filing of the 

petitions.178 79 FR at 44373. The Board, 

however, arbitrarily came up with its 

own ‘‘best practice.’’ Specifically, the 

Board stated: 

The pre-election hearing will generally be 

scheduled to open 8 days from notice of the 

hearing. This largely codifies best practices 

in some regions, where hearings were 

regularly scheduled to open in 7 days to 10 

days. However, practice was not uniform 

among regions, with some scheduling 

hearings for 10 to 12 days, and actually 

opening hearings in 13 to 15 days, or even 

longer. The rule brings all regions in line 

with best practices. 

79 FR at 74309 (emphasis added).179

There are many problems with this 

reasoning, including the obvious 

question why the selection of ‘‘eight 

days’’ as a maximum, when the alleged 

‘‘best practices’’ range was between 

seven and ten, was not arbitrary. But 

there is an even more fundamental 

problem. The 2014 Rule does not 

explain why it was a ‘‘best practice’’ to 

open hearings at eight days rather than 

seven days, ten days, twelve days, or 

‘‘even longer.’’ In justifying the eightday period, my colleagues fare little 

better. In finding it a ‘‘best practice,’’ 

they beg the question: they assume that 

shorter time periods between the filing 

of the petition and the opening of the 

hearing are ‘‘best practices’’ for no other 

reason than that they are shorter. 

Unfortunately, reasoned decisionmaking requires more analysis than ‘‘we 

think shorter is better,’’ and justifying a 

specific outcome by declaring that 

examples consistent with that outcome 

were ‘‘best practices,’’ while examples 

inconsistent with that outcome were 

not, does not come close to constituting 

reasoned analysis. 

It is also worth noting that my 

colleagues fail to give significant weight 

to the negative effects that their rules 

will have on employers in general, and 

small businesses in particular. My 

colleagues attempt to minimize these 

effects, accusing the 2019 Rule of 

unnecessarily sacrificing ‘‘the statutory 

interest in expeditiously resolving 

questions of representation’’ to, among 

other things, the ‘‘non-statutory interest 

in maximizing employer convenience.’’ 

Among these ‘‘non-statutory interests’’ 

that the 2019 Rule sought to protect are 

the ‘‘convenience’’ of retaining legal 

counsel, the ‘‘convenience’’ of 

adequately gathering the facts, the 

‘‘convenience’’ of fully researching the 

applicable law, the ‘‘convenience’’ of 

securing witnesses; the ‘‘convenience’’ 

of adequately coordinating with regional 

personnel; and the ‘‘convenience’’ of 

having sufficient time to secure an 

election agreement with the other 

parties. What my colleagues 

characterize as ‘‘conveniences,’’ I 

characterize as basic fairness and due 

process.180 They guarantee that ‘‘parties 


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will necessarily be deprived of its due process 

rights in every set of circumstances.’’ Chamber of 

Commerce of the United States of America v. NLRB, 

118 F. Supp. 3d 171, 206 (D.D.C. 2015); see also 

Associated Builders & Contractors of Texas, Inc. v. 

NLRB, 826 F.3d 215 (5th Cir. 2016). Finding that the 

2014 Rule does not necessarily preclude due 

process in all instances is entirely different from 

finding that the 2014 Rule satisfies due process in 

all instances. 

181My colleagues contend that I ‘‘fail[ ] to 

meaningfully engage with the relevant legal 

discussion on [the due process] issue in the 2014 

[R]ule.’’ Yet, the 2014 Rule’s analysis is little more 

than a recapitulation of its earlier findings. For 

instance, on one side of the due process scale, the 

2014 Rule found that the shorter timeframes ‘‘pose 

little risk of error’’ because issues resolved in 

representation cases are ‘‘typically . . . not all that 

complex to litigate.’’ 79 FR at 74372. On the other, 

it found that the tighter timeframes ‘‘serve very 

important public interests’’ because ‘‘each delay in 

resolving the question concerning representation 

causes public harm.’’ Id. Based on this relative 

weighting, the 2014 Rule concluded that its many 

changes did not deprive parties of their due process 

rights. It was this flawed analysis that the Board 

thoroughly and appropriately rejected in the 2019 

Rule, in which I participated. Once again, I do not 

believe it is necessary to redundantly explain the 

reasons for that rejection in this dissent. 

182My colleagues argue that A.J. Tower ‘‘stands 

for the proposition that challenges to voters’ 

eligibility in union elections must be made prior to 

the election—not that all such challenges need to 

be resolved prior to the election.’’ However, the 

reasoning behind the Court’s decision is 

undeniable. The Court concluded that resolving 

questions of voter eligibility promotes the bedrock 

democratic ideal of the fully informed voter and the 

substantial interest in election finality. Certainly, 

the 2019 Rule’s preference for resolving such 

questions prior to the election better advances these 

interests than did the 2014 Rule to which my 

colleagues return. 

Because my colleagues would limit the scope of 

the pre-election hearing consistent with the 2014 

Rule, they would also rescind the 2019 Rule’s 

provisions pertaining to the parties’ right to 

introduce relevant facts into the record and call, 

examine, and cross-examine witnesses at the preelection hearing. For the reasons summarized above 

and more fully stated in the 2019 Rule, I would 

retain these additional provisions as well. 84 FR at 

69542. 

[have] the opportunity to present 

evidence and advance arguments 

concerning’’ issues fundamental to 

resolving questions concerning 

representation. Bennett Industries, 313 

NLRB 1363, 1363 (1994). Such 

protections are critical to ensuring that 

employees in the prospective unit have 

the opportunity to make a fully 

informed decision about their 

representational status in the absence of 

objectionable conduct.181

2. Conduct of Hearing 

As mentioned above, my colleagues 

place significant emphasis on an 

‘‘observation’’ made by the Supreme 

Court in NLRB v. A.J. Tower Co., 329 

U.S. 324 (1946), that ‘‘the Board must 

adopt policies and promulgate rules and 

regulations in order that employees’ 

votes may be recorded accurately, 

efficiently, and speedily.’’ 329 U.S. at 

331. And further, as discussed above, 

this statement by the Court did not 

require the Board to promulgate rules so 

that employees’ votes would be 

recorded as speedily as possible. Rather, 

the Court indicated that any such rules 

must ‘‘insure the fair and free choice of 

bargaining representatives by 

employees.’’ Id. at 330. 

But more importantly, my colleagues 

completely disregard the actual holding 

in A.J. Tower. The issue before the Court 

was whether the Board had erred in 

denying the employer’s post-election 

challenge to the eligibility of one of the 

voters. The employer asserted that, at 

the time of the election, it had not 

realized that the employee had 

abandoned her position prior to the 

election. The U.S. Court of Appeals for 

the Fifth Circuit had found that the 

Board erred by denying this challenge, 

reasoning that for jurisdictional reasons 

the Board could not certify a unit where 

less than a majority of employees who 

voted had voted for unionization. In 

overruling the Fifth Circuit’s decision, 

the Court expressly disapproved of the 

employer’s attempt to challenge the 

employee’s eligibility post-election: 

The principle of majority rule, however, 

does not foreclose practical adjustments 

designed to protect the election machinery 

from the ever-present dangers of abuse and 

fraud. Indeed, unless such adjustments are 

made, the democratic process may be 

perverted, and the election may fail to reflect 

the will of the majority of the electorate. One 

of the commonest protective devices is to 

require that challenges to the eligibility of 

voters be made prior to the actual casting of 

ballots, so that all uncontested votes are 

given absolute finality. In political elections, 

this device often involves registration lists 

which are closed some time prior to election 

day; all challenges as to registrants must be 

made during the intervening period or at the 

polls. Thereafter it is too late. The fact that 

cutting off the right to challenge conceivably 

may result in the counting of some ineligible 

votes is thought to be far outweighed by the 

dangers attendant upon the allowance of 

indiscriminate challenges after the election. 

To permit such [post-election] challenges, 

. . . would invade the secrecy of the ballot, 

destroy the finality of the election result, 

invite unwarranted and dilatory claims by 

defeated candidates and ‘‘keep perpetually 

before the courts the same excitements, 

strifes, and animosities which characterize 

the hustings, and which ought, for the peace 

of the community, and the safety and 

stability of our institutions, to terminate with 

the close of the polls.’’ Cooley, Constitutional 

Limitations (8th ed., 1927), p. 1416. 

Long experience has demonstrated the 

fairness and efficaciousness of the general 

rule that once a ballot has been cast without 

challenge and its identity has been lost; its 

validity cannot later be challenged. This rule 

is universally recognized as consistent with 

the democratic process. And it is generally 

followed in corporate elections. The Board’s 

adoption of the rule in elections under the 

National Labor Relations Act is therefore in 

accord with the principles which Congress 

indicated should be used in securing the fair 

and free choice of collective bargaining 

representatives. 

Moreover, the rule in question is one that 

is peculiarly appropriate to the situations 

confronting the Board in these elections. In 

an atmosphere that may be charged with 

animosity, post-election challenges would 

tempt a losing union or an employer to make 

undue attacks on the eligibility of voters so 

as to delay the finality and statutory effect of 

the election results. Such challenges would 

also extend an opportunity for the inclusion 

of ineligible pro-union or anti-union men on 

the pay-roll list in the hope that they might 

escape challenge before voting, thereafter, 

giving rise to a charge that the election was 

void because of their ineligibility and the 

possibility that they had voted with the 

majority and were a decisive factor. The 

privacy of the voting process, which is of 

great importance in the industrial world, 

would frequently be destroyed by postelection challenges. And voters would often 

incur union or employer disfavor through 

their reaction to the inquiries. 

Id. at 327–329 (emphasis added). 

Accordingly, my colleagues ignore the 

inconvenient fact that the Supreme 

Court found—in the very same case 

where it observed the need to record 

employee votes accurately, efficiently, 

and speedily—that resolving issues of 

employee eligibility to vote before the 

election not only satisfies that goal but 

is ‘‘peculiarly appropriate’’ in Board 

elections and ‘‘is in accord with the 

principles which Congress indicated 

should be used in securing the fair and 

free choice of collective bargaining 

representatives.’’ Accordingly, any 

assertion that the Court’s decision in 

A.J. Tower supports a revocation of 

Section 102.64(a) of the 2019 Rule, 

which states that ‘‘[d]isputes concerning 

unit scope, voter eligibility and 

supervisory status will normally be 

litigated and resolved by the Regional 

Director before an election is directed,’’ 

is without merit.182

Finally, my colleagues argue that 

‘‘[s]upervisory status issues exist only at 

the margin because in most cases where 

there is uncertainty concerning the 

supervisory status of one or more 

individuals, the employer nevertheless 

has in its employ managers and 

supervisors whose status is not in 

dispute . . . . [and who] may . . . be 

utilized in a pre-election campaign 

against a union.’’ As the 2019 Rule 

observed, however, this issue is not 

simply about an employer 

disseminating its message to employees, 

it is about ‘‘post-election complications 

where the putative supervisors engage 

in conduct during the critical period 


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183The majority contends that, if this were indeed 

a ‘‘real’’ problem, the relevant data should show an 

increase in election objections. Of course, that 

argument ignores the much more likely outcome of 

this ambiguity—that a putative supervisor will not 

voice any opinion about unionization because they 

do not want to risk engaging in objectionable 

conduct. 184My colleagues reinstate the same standards set 

forth in the 2014 Rule for postponement of the 

hearing: a party must establish either ‘‘special 

circumstances’’ or ‘‘extraordinary circumstances’’ to 

obtain a postponement of the hearing. (They also set 

these standards for obtaining an extension for the 

Statement of Position, but given that the Statement 

of Position is due the day before the hearing at 

noon, it is hard to imagine that a party would be 

able to obtain a meaningful extension unless the 

hearing is postponed.) For the reasons set forth in 

the 2019 Rule, I do not believe that there is a 

compelling reason for jettisoning the Board’s 

standard ‘‘good cause’’ standard for providing 

postponements and extensions, which was 

reinstated by the 2019 Rule. Most parties, as well 

as Regional Directors and courts, have no difficulty 

interpreting what is required to establish good 

cause. I do not believe that the same can be said 

for determining what is required to establish 

‘‘special circumstances’’ or ‘‘extraordinary 

circumstances.’’ 

185 In UPS Ground Freight, the D.C. Circuit 

concluded that the ‘‘Statement of Position is not 

binding’’ because, under the 2014 Rule, the regional 

director has the discretion to ‘‘permit the employer 

to amend its Statement of Position in a timely 

manner for good cause.’’ 921 F.3d at 256. With due 

respect to the court, I am not sure how that follows. 

The Statement of Position is binding; the employer 

is limited to the issues raised in that document. The 

fact that the regional director has the discretion to 

amend the Statement of Position does not mean that 

the employer has the right to amend the Statement 

of Position. If the regional director opts not to 

permit an amendment, then the Statement of 

Position, which employers must file as little as 

three and a half days following service of the Notice 

of Hearing, is binding. 

that is objectionable when engaged in by 

a supervisor, but is unobjectionable 

when engaged in by nonparty 

employees.’’ 84 FR at 69540.183

3. Due Date for Non-Petitioning Party’s 

Statement of Position 

As discussed above, my colleagues 

have failed to establish that the 2014 

Rule met the requirement under the 

Administrative Procedures Act by 

providing a non-arbitrary, reasoned 

basis for requiring regional directors to 

schedule pre-election hearings no more 

than eight calendar days from the 

service of the Notice of Hearing.184 The 

arbitrary nature of this unreasonably 

short time frame results in an even more 

problematic result insofar as the 2014 

Rule requires that the Statement of 

Position is due by noon the day before 

the opening of the pre-election hearing. 

Based on the scheduling of the preelection hearing, this will normally be 

due about seven calendar days after 

service of the notice of hearing. 

As explained in the 2019 Rule, I 

disagree with this provision of the 2014 

Rule. See 84 FR at 69534–69538. The 

2019 Board determined that the 

statement of position is an effective tool 

in narrowing the issues to be litigated 

and even in facilitating election 

agreements. However, the statement of 

position can only be effective if the 

parties have adequate time to prepare it. 

Parties must craft a statement of 

position while simultaneously retaining 

counsel, researching facts and law, 

identifying potential witness, and 

possibly negotiating election 

agreements. But even if my colleagues 

are, in effect, deciding that it is not 

important that parties have sufficient 

time to prepare statements of position, 

it is then arbitrary and capricious for 

them also to preclude parties from later 

raising an argument that did not appear 

in its statement of position. Either 

statements of position play an important 

role in representation case procedures 

or they do not. If the latter is true, then 

I’m not sure why my colleagues 

continue to require parties to file them 

at all. If the former is true, then due 

process demands that parties have an 

adequate time to consider all possible 

concerns that they might wish to raise 

with regard to the election, given that 

those concerns will be deemed waived 

if they are not set forth in the Statement 

of Position.185

4. Responsive Statement of Position 

My colleagues also rescind the 2019 

Rule provision requiring the petitioner 

to file a written responsive statement of 

position, instead requiring the petitioner 

to respond orally at the pre-election 

hearing, as was done under the 2014 

Rule. For the reasons stated in the 2019 

Rule, retention of the right to file a 

written responsive statement of position 

better supports the interests of 

timeliness, efficiency, transparency, and 

uniformity in elections. 84 FR at 69536– 

69538 

5. Notice of Petition for Election 

My colleagues rescind the 2019 Rule’s 

requirement that employers post and 

distribute the notice of petition for 

election within five business days after 

service of the notice of hearing and 

return to the 2014 Rule, which required 

the posting and distribution of the 

notice to be done within two business 

days. The majority argues that because 

the information contained in the notice 

is ‘‘straightforward,’’ an employer 

should have no problem promptly 

completing this task. 

Although the majority views the 

posting and distribution as a simple 

task, this ignores the realities of the 

modern workplace. As more fully 

explained in the 2019 Rule, employers 

can easily encounter logistical 

difficulties in posting and distributing 

the notice. 84 FR at 69538. Large 

employers, especially large multilocation employers, need time to 

determine all of the places where the 

notice will need to be posted and all of 

the employees to whom it must be 

electronically distributed. Such 

information cannot always be easily 

ascertained by a few keystrokes at some 

far-off centralized human resources 

department, as my colleagues so readily 

believe. Smaller employers, who may 

not be well versed in the intricacies of 

the Board’s election rules, too will need 

time to consult with legal counsel to 

fully understand their obligations to 

post and distribute the notice in 

addition to securing the information 

necessary to satisfy that obligation. 

Getting these decisions right is critical 

because failure to properly post and 

distribute the notice of petition for 

election in a timely manner may result 

in setting aside the election. Moreover, 

with the expanded timeframe under the 

2019 Rule, the notice will be posted for 

longer than under the 2014 Rule, 

thereby better informing employees of 

their rights and the election procedures. 

As a result, the few extra days to comply 

with this important requirement better 

serves the purposes of the Act. 

6. Elimination of the 20-Day Waiting 

Period 

Prior to the 2014 Rule, the Board’s 

statements of procedure provided that 

the regional director would not 

normally schedule an election until a 

date between the 25th and 30th day 

after the date of the decision and 

direction of election, which allowed the 

Board time to act on any requests for 

review. The 2019 Rule slightly modified 

this traditional timeline, requiring 

regional directors to schedule elections 

no sooner than twenty business days 

after issuance of the decision and 

direction. As mentioned above, this 

period following the issuance of the 

decision and direction of election is 

critical to protect employees’ rights 

under the Act to freely choose whether 

or not to be represented by a union. 

Again, the Board has expressly 

recognized that ‘‘ensuring that all 

employees are fully informed about the 

arguments concerning representation 

and can freely and fully exercise their 

Section 7 rights’’ is an important 

statutory right. Mod Interiors, 324 NLRB 

164, 164 (1997) (emphasis added); 

accord Excelsior Underwear, Inc., 156 

NLRB 1236, 1240 (1966) (finding that 

‘‘an employee who has had an effective 

opportunity to hear the arguments 

concerning choice is in a better position 

to make a more fully informed and 


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186The majority characterizes the 2019 Rule as 

‘‘impos[ing]’’ a 20-business day waiting period. If 

that is so, then the Board had been ‘‘imposing’’ a 

20-business day waiting period on parties to 

elections for a long time prior to the 2014 Rule, 

which for the first time prohibited regional 

directors from establishing any waiting period 

whatsoever. 

187 I also note that my colleagues’ complaint 

about the 2019 Rule’s 20-day waiting period reflects 

some inconsistency in their position. When tasking 

the Board’s Regions with quickly processing 

representation matters, my colleagues characterize 

these cases as mainly presenting ‘‘straightforward 

and frequently reoccurring’’ issues governed by a 

‘‘contained body of law.’’ However, when it comes 

to the Board’s processing of the inevitable requests 

for review, my colleagues are quick to plead that 

‘‘resource constraints and other responsibilities’’ 

prevent expedited action. 

Because my colleagues would limit the scope of 

the pre-election hearing consistent with the 2014 

Rule, they would also rescind the 2019 Rule’s 

provisions pertaining to the parties’ right to 

introduce relevant facts into the record and call, 

examine, and cross-examine witnesses at the preelection hearing. For the reasons summarized above 

and more fully stated in the 2019 Rule, I would 

retain these additional provisions as well. 84 FR at 

69542. 

My colleagues simply echo the arguments 

advanced in the 2014 Rule to support their 

conclusion that employees will have the 

opportunity to become fully informed even under 

their shortened timeframe. However, the dissenters 

to the 2014 Rule ably discussed the flawed evidence 

and analysis on which the 2014 majority relied. 79 

FR at 74439–74440. 

188Under the 2019 Rule, parties were entitled to 

submit post-hearing briefs within 5 business days 

after the close of the hearing. For good cause, the 

hearing officer could grant an extension of time not 

to exceed an additional 10 business days. 

189Supervisory status and independent contractor 

status are just two issues that require a detailed 

factual analysis where briefing can be used to best 

make sense of fact intensive arguments. Indeed, 

some cases may raise many unique issues that 

together create a complex case in which the 

regional director or hearing officer would greatly 

benefit from briefing. 

My colleagues attempt to downplay the 

significance of the elimination of parties’ 

opportunity to file post-hearing briefs by asserting 

that, the regional directors and hearing officers can 

grant ‘‘special permission’’ in the ‘‘rare complex 

case’’ in which they deem such briefing is needed. 

With due respect, it is cold comfort to parties to 

learn that their ability to advocate for their position 

in writing is only available should the regional 

director or hearing officer grant them permission to 

do so. 

reasonable choice’’). Yet, it is not clear 

how the majority reconciles this critical 

statutory right with its revocation of the 

2019 Rule’s reinstatement of the 20- 

business day waiting period and its 

restoration of the 2014 Rule’s mandate 

that regional directors must schedule 

elections for ‘‘the earliest date 

practicable.’’ It is clear to me that this 

revision in the Board’s rules drastically 

limits the period of time during which 

employees can become ‘‘fully informed’’ 

voters.186

Simply put, no one can say for certain 

how much time in sufficient time to 

allow an electorate to become fully 

informed voters. However, I think it is 

fair to say that it is difficult to imagine 

a rule that would more directly infringe 

on employees’ rights in this regard than 

requiring that elections be scheduled 

‘‘as soon as practicable.’’ For the reasons 

set forth in the 2019 Rule, 84 FR at 

69538–69542, 69544–69547, and 

summarized in my dissent to the final 

rule staying the implementation of these 

provisions, 88 FR at 14915, I believe 

that the majority has failed to 

adequately consider the important 

statutory interest in allowing employees 

to become ‘‘fully informed’’ voters in 

reinstating the unprecedented 

requirement that regional directors 

schedule elections as soon as 

possible.187

7. Post-Hearing Briefs 

My colleagues also rescind provisions 

of the 2019 Rule that reinstated the 

parties’ right to file briefs after close of 

the pre-election hearings and extended 

that right to post-election hearings.188

They return to the 2014 Rule, under 

which parties were entitled to present 

oral argument at the close of the 

hearings and could only file briefs upon 

special permission of the regional 

director in the case of pre-election 

hearings or the hearing officer in the 

case of post-election hearings. In doing 

so, they minimize the complexity of 

representation cases, as did the 2014 

Rule. In 2019, the Board recognized that 

error of the 2014 Rule’s approach, 

observing that many of the issues that 

are litigated in hearings are anything but 

straightforward. 84 FR at 69542–69543, 

69556. For instance, issues such as 

supervisory or independent contractor 

status frequently require detailed factual 

analyses in the context of multi-factor 

legal tests. Permitting parties a few days 

to file post-hearing briefs allows the 

parties time to review the transcript, to 

engage in legal research, and, thereby, to 

refine, moderate, or even abandon 

arguments on these difficult questions. 

Such efforts assist the Board and the 

parties in resolving matters in dispute, 

thereby promoting more efficient case 

processing without unduly delaying 

resolution of the case.189

8. Notice of Election 

Finally, my colleagues rescind the 

2019 Rule provision that clarified the 

regional directors’ discretion to issue 

the direction of election separately from 

the notice of election by expressly 

stating that they ‘‘may’’ do so and return 

to the 2014 Rule, which stated that 

regional directors will ‘‘ordinarily’’ do 

so. As the 2019 Rule correctly observed, 

by clarifying the regional directors’ 

discretion to issue a direction of 

election and resolve election details 

later without having to justify a 

bifurcated action based on the existence 

of ‘‘unusual circumstances,’’ the 2019 

Rule made the process more 

transparent. The 2019 Rule also made 

the process more efficient because it 

afforded regional directors greater 

leeway to engage the parties in posthearing discussions about the conduct 

of the election and, thereby, created 

space with which to achieve agreement. 

84 FR at 69544. 

D. Conclusion 

My colleagues’ efforts are, at best, 

unnecessary and premature and, at 

worst, arbitrary and capricious. The 

Final Rule forces regional directors to 

run elections as quickly as possible, 

without providing adequate safeguards 

to preserve the rights of all parties 

involved. My colleagues have failed to 

provide a reasoned basis for concluding 

that speedy elections protect employees’ 

right to fully exercise their statutory 

rights under the Act. Nor have my 

colleagues established any 

representative data to support their view 

that the 2019 Rule must be revoked. For 

the reasons discussed in this dissent, as 

well as the analyses set forth in the 

Board’s 2019 Rule and the cited 

portions of the dissent to the 2014 Rule, 

I cannot join my colleagues in 

promulgating the amendments set forth 

in this Rule. 

VII. Other Statutory Requirements 

Regulatory Flexibility Act 

The Board is not required to prepare 

a final regulatory flexibility analysis for 

this final rule under the Regulatory 

Flexibility Act, as amended by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, 5 U.S.C. 601, et 

seq., because the Agency has not issued 

a Notice of Proposed Rulemaking prior 

to this action. 

Paperwork Reduction Act 

The amended regulations are exempt 

from the Paperwork Reduction Act of 

1995, 44 U.S.C. 3501 et seq. See 44 

U.S.C. 3518(c). Accordingly, the final 

rule does not contain information 

collection requirements necessitating 

the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act. 

Final Rule 

This rule is published as a final rule. 

As discussed above in the preamble, 

and consistent with the decision in 

AFL–CIO v. NLRB, 57 F.4th 1023 (D.C. 

Cir. Jan. 17, 2023), this rule has been 

deemed a procedural rule exempt from 


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notice and comment, pursuant to 5 

U.S.C. 553(b)(A), as a rule of ‘‘agency 

organization, procedure, or practice.’’ 

List of Subjects in 29 CFR Part 102 

Administrative practice and 

procedure, Labor management relations. 

For the reasons stated in the 

preamble, the National Labor Relations 

Board amends 29 CFR part 102 as 

follows: 

PART 102—RULES AND 

REGULATIONS, SERIES 8 

■ 1. The authority citation for part 102 

continues to read as follows: 

Authority: 29 U.S.C. 151, 156. Section 

102.117 also issued under 5 U.S.C. 

552(a)(4)(A), and Section 102.119 also issued 

under 5 U.S.C. 552a(j) and (k). Sections 

102.143 through 102.155 also issued under 5 

U.S.C. 504(c)(1). 

Subpart D—Procedure Under Section 

9(c) of the Act for the Determination of 

Questions Concerning Representation 

of Employees and for Clarification of 

Bargaining Units and for Amendment 

of Certifications Under Section 9(b) of 

the Act 

■ 2. Revise § 102.63 to read as follows: 

§ 102.63 Investigation of petition by 

Regional Director; Notice of Hearing; 

service of notice; Notice of Petition for 

Election; Statement of Position; withdrawal 

of Notice of Hearing. 

(a) Investigation; Notice of Hearing; 

notice of petition for election. (1) After 

a petition has been filed under 

§ 102.61(a), (b), or (c), if no agreement 

such as that provided in § 102.62 is 

entered into and if it appears to the 

Regional Director that there is 

reasonable cause to believe that a 

question of representation affecting 

commerce exists, that the policies of the 

Act will be effectuated, and that an 

election will reflect the free choice of 

employees in an appropriate unit, the 

Regional Director shall prepare and 

cause to be served upon the parties and 

upon any known individuals or labor 

organizations purporting to act as 

representatives of any employees 

directly affected by such investigation, a 

Notice of Hearing before a Hearing 

Officer at a time and place fixed therein. 

Except in cases presenting unusually 

complex issues, the Regional Director 

shall set the hearing for a date 8 days 

from the date of service of the notice 

excluding intervening Federal holidays, 

but if the 8th day is a weekend or 

Federal holiday, the Regional Director 

shall set the hearing for the following 

business day. The Regional Director 

may postpone the hearing for up to 2 

business days upon request of a party 

showing special circumstances. The 

Regional Director may postpone the 

opening of the hearing for more than 2 

business days upon request of a party 

showing extraordinary circumstances. A 

copy of the petition, a description of 

procedures in representation cases, a 

Notice of Petition for Election, and a 

Statement of Position form as described 

in paragraphs (b)(1) through (3) of this 

section, shall be served with such 

Notice of Hearing. Any such Notice of 

Hearing may be amended or withdrawn 

before the close of the hearing by the 

Regional Director on the director’s own 

motion. 

(2) Within 2 business days after 

service of the Notice of Hearing, the 

employer shall post the Notice of 

Petition for Election in conspicuous 

places, including all places where 

notices to employees are customarily 

posted, and shall also distribute it 

electronically to employees in the 

petitioned-for unit if the employer 

customarily communicates with its 

employees electronically. The Notice of 

Petition for Election shall indicate that 

no final decisions have been made yet 

regarding the appropriateness of the 

petitioned-for bargaining unit and 

whether an election shall be conducted. 

The employer shall maintain the posting 

until the petition is dismissed or 

withdrawn or the Notice of Petition for 

Election is replaced by the Notice of 

Election. The employer’s failure 

properly to post or distribute the Notice 

of Petition for Election may be grounds 

for setting aside the election whenever 

proper and timely objections are filed 

under the provisions of § 102.69(a)(8). A 

party shall be estopped from objecting 

to the nonposting of notices if it is 

responsible for the nonposting, and 

likewise shall be estopped from 

objecting to the nondistribution of 

notices if it is responsible for the 

nondistribution. 

(b) Statements of Position—(1) 

Statement of Position in RC cases. If a 

petition has been filed under § 102.61(a) 

and the Regional Director has issued a 

Notice of Hearing, the employer shall 

file with the Regional Director and serve 

on the parties named in the petition its 

Statement of Position such that it is 

received by the Regional Director and 

the parties named in the petition by the 

date and time specified in the Notice of 

Hearing, which shall be at noon on the 

business day before the opening of the 

hearing if the hearing is set to open 8 

days from service of the notice. The 

Regional Director may set the date and 

time for filing and serving the Statement 

of Position earlier than at noon on the 

business day before the hearing in the 

event the hearing is set to open more 

than 8 days from service of the notice. 

The Regional Director may postpone the 

time for filing and serving the Statement 

of Position for up to 2 business days 

upon request of a party showing special 

circumstances. The Regional Director 

may postpone the time for filing and 

serving the Statement of Position for 

more than 2 business days upon request 

of a party showing extraordinary 

circumstances. The Regional Director 

may permit the employer to amend its 

Statement of Position in a timely 

manner for good cause. 

(i) Employer’s Statement of Position. 

(A) The employer’s Statement of 

Position shall state whether the 

employer agrees that the Board has 

jurisdiction over it and provide the 

requested information concerning the 

employer’s relation to interstate 

commerce; state whether the employer 

agrees that the proposed unit is 

appropriate, and, if the employer does 

not so agree, state the basis for its 

contention that the proposed unit is 

inappropriate, and state the 

classifications, locations, or other 

employee groupings that must be added 

to or excluded from the proposed unit 

to make it an appropriate unit; identify 

any individuals whose eligibility to vote 

the employer intends to contest at the 

pre-election hearing and the basis of 

each such contention; raise any election 

bar; state the length of the payroll 

period for employees in the proposed 

unit and the most recent payroll period 

ending date; state the employer’s 

position concerning the type, date(s), 

time(s), and location(s) of the election 

and the eligibility period; and describe 

all other issues the employer intends to 

raise at the hearing. 

(B) The Statement of Position shall 

also state the name, title, address, 

telephone number, facsimile number, 

and email address of the individual who 

will serve as the representative of the 

employer and accept service of all 

papers for purposes of the 

representation proceeding and be signed 

by a representative of the employer. 

(C) The Statement of Position shall 

include a list of the full names, work 

locations, shifts, and job classifications 

of all individuals in the proposed unit 

as of the payroll period preceding the 

filing of the petition who remain 

employed at the time of filing, and if the 

employer contends that the proposed 

unit is inappropriate, the employer shall 

separately list the full names, work 

locations, shifts, and job classifications 

of all individuals that the employer 

contends must be added to the proposed 

unit to make it an appropriate unit. The 

employer shall also indicate those 


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individuals, if any, whom it believes 

must be excluded from the proposed 

unit to make it an appropriate unit. The 

list(s) of names shall be alphabetized 

(overall or by department) and be in an 

electronic format approved by the 

General Counsel unless the employer 

certifies that it does not possess the 

capacity to produce the list in the 

required form. 

(2) Statement of Position in RM cases. 

If a petition has been filed under 

§ 102.61(b) and the Regional Director 

has issued a Notice of Hearing, each 

individual or labor organization named 

in the petition shall file with the 

Regional Director and serve on the other 

parties named in the petition its 

Statement of Position such that it is 

received by the Regional Director and 

the parties named in the petition by the 

date and time specified in the Notice of 

Hearing, which shall be at noon on the 

business day before the opening of the 

hearing if the hearing is set to open 8 

days from service of the notice. The 

Regional Director may set the date and 

time for filing and serving the Statement 

of Position earlier than at noon on the 

business day before the hearing in the 

event the hearing is set to open more 

than 8 days from service of the notice. 

The Regional Director may postpone the 

time for filing and serving the Statement 

of Position for up to 2 business days 

upon request of a party showing special 

circumstances. The Regional Director 

may postpone the time for filing and 

serving the Statement of Position for 

more than 2 business days upon request 

of a party showing extraordinary 

circumstances. The Regional Director 

may permit each individual or labor 

organization named in the petition to 

amend its Statement of Position in a 

timely manner for good cause. 

(i) Individual or labor organization’s 

Statement of Position. Each individual 

or labor organization’s Statement of 

Position shall state whether it agrees 

that the Board has jurisdiction over the 

employer; state whether it agrees that 

the proposed unit is appropriate, and, if 

it does not so agree, state the basis for 

its contention that the proposed unit is 

inappropriate, and state the 

classifications, locations, or other 

employee groupings that must be added 

to or excluded from the proposed unit 

to make it an appropriate unit; identify 

any individuals whose eligibility to vote 

the individual or labor organization 

intends to contest at the pre-election 

hearing and the basis of each such 

contention; raise any election bar; state 

its position concerning the type, date(s), 

time(s), and location(s) of the election 

and the eligibility period; and describe 

all other issues it intends to raise at the 

hearing. 

(ii) Identification of representative for 

service of papers. Each individual or 

labor organization’s Statement of 

Position shall also state the name, title, 

address, telephone number, facsimile 

number, and email address of the 

individual who will serve as its 

representative and accept service of all 

papers for purposes of the 

representation proceeding and be signed 

by the individual or a representative of 

the individual or labor organization. 

(iii) Employer’s Statement of Position. 

Within the time permitted for filing the 

Statement of Position, the employer 

shall file with the Regional Director and 

serve on the parties named in the 

petition a list of the full names, work 

locations, shifts, and job classifications 

of all individuals in the proposed unit 

as of the payroll period preceding the 

filing of the petition who remain 

employed at the time of filing. The 

list(s) of names shall be alphabetized 

(overall or by department) and be in an 

electronic format approved by the 

General Counsel unless the employer 

certifies that it does not possess the 

capacity to produce the list in the 

required form. The employer’s 

Statement of Position shall also state 

whether the employer agrees that the 

Board has jurisdiction over it and 

provide the requested information 

concerning the employer’s relation to 

interstate commerce; identify any 

individuals whose eligibility to vote the 

employer intends to contest at the preelection hearing and the basis of each 

such contention; and state the length of 

the payroll period for employees in the 

proposed unit and the most recent 

payroll period ending date. The 

Regional Director may permit the 

employer to amend its Statement of 

Position in a timely manner for good 

cause. 

(3) Statement of Position in RD 

cases—(i) Employer’s and 

Representative’s Statements of Position. 

(A) If a petition has been filed under 

§ 102.61(c) and the Regional Director 

has issued a Notice of Hearing, the 

employer and the certified or recognized 

representative of employees shall file 

with the Regional Director and serve on 

the parties named in the petition their 

respective Statements of Position such 

that they are received by the Regional 

Director and the parties named in the 

petition by the date and time specified 

in the Notice of Hearing, which shall be 

at noon on the business day before the 

opening of the hearing if the hearing is 

set to open 8 days from service of the 

notice. The Regional Director may set 

the date and time for filing and serving 

the Statement of Position earlier than at 

noon on the business day before the 

hearing in the event the hearing is set 

to open more than 8 days from service 

of the notice. The Regional Director may 

postpone the time for filing and serving 

the Statement of Position for up to 2 

business days upon request of a party 

showing special circumstances. The 

Regional Director may postpone the 

time for filing and serving the Statement 

of Position for more than 2 business 

days upon request of a party showing 

extraordinary circumstances. The 

Regional Director may permit the 

employer and the certified or recognized 

representative of employees to amend 

their respective Statements of Position 

in a timely manner for good cause. 

(B) The Statements of Position of the 

employer and the certified or recognized 

representative shall state each party’s 

position concerning the Board’s 

jurisdiction over the employer; state 

whether each agrees that the proposed 

unit is appropriate, and, if not, state the 

basis for the contention that the 

proposed unit is inappropriate, and 

state the classifications, locations, or 

other employee groupings that must be 

added to or excluded from the proposed 

unit to make it an appropriate unit; 

identify any individuals whose 

eligibility to vote each party intends to 

contest at the pre-election hearing and 

the basis of each such contention; raise 

any election bar; and state each party’s 

respective positions concerning the 

type, date(s), time(s), and location(s) of 

the election and the eligibility period; 

and describe all other issues each party 

intends to raise at the hearing. 

(C) The Statements of Position shall 

also state the name, title, address, 

telephone number, facsimile number, 

and email address of the individual who 

will serve as the representative of the 

employer or the certified or recognized 

representative of the employees and 

accept service of all papers for purposes 

of the representation proceeding and be 

signed by a representative of the 

employer or the certified or recognized 

representative, respectively. 

(D) The employer’s Statement of 

Position shall also include a list of the 

full names, work locations, shifts, and 

job classifications of all individuals in 

the proposed unit as of the payroll 

period preceding the filing of the 

petition who remain employed at the 

time of filing, and if the employer 

contends that the proposed unit is 

inappropriate, the employer shall 

separately list the full names, work 

locations, shifts, and job classifications 

of all individuals that the employer 

contends must be added to the proposed 

unit to make it an appropriate unit. The 


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employer shall also indicate those 

individuals, if any, whom it believes 

must be excluded from the proposed 

unit to make it an appropriate unit. The 

list(s) of names shall be alphabetized 

(overall or by department) and be in an 

electronic format approved by the 

General Counsel unless the employer 

certifies that it does not possess the 

capacity to produce the list in the 

required form. The employer’s 

Statement of Position shall also provide 

the requested information concerning 

the employer’s relation to interstate 

commerce and state the length of the 

payroll period for employees in the 

proposed unit and the most recent 

payroll period ending date. 

(c) UC or AC cases. After a petition 

has been filed under § 102.61(d) or (e), 

the Regional Director shall conduct an 

investigation and, as appropriate, may 

issue a decision without a hearing; or 

prepare and cause to be served upon the 

parties and upon any known 

individuals or labor organizations 

purporting to act as representatives of 

any employees directly affected by such 

investigation, a Notice of Hearing before 

a Hearing Officer at a time and place 

fixed therein; or take other appropriate 

action. If a Notice of Hearing is served, 

it shall be accompanied by a copy of the 

petition. Any such Notice of Hearing 

may be amended or withdrawn before 

the close of the hearing by the Regional 

Director on the director’s own motion. 

All hearing and post-hearing procedure 

under this paragraph (c) shall be in 

conformance with §§ 102.64 through 

102.69 whenever applicable, except 

where the unit or certification involved 

arises out of an agreement as provided 

in § 102.62(a), the Regional Director’s 

action shall be final, and the provisions 

for review of Regional Director’s 

decisions by the Board shall not apply. 

Dismissals of petitions without a 

hearing shall not be governed by 

§ 102.71. The Regional Director’s 

dismissal shall be by decision, and a 

request for review therefrom may be 

obtained under § 102.67, except where 

an agreement under § 102.62(a) is 

involved. 

■ 3. Amend § 102.64 by revising 

paragraph (a) to read as follows: 

§ 102.64 Conduct of hearing. 

(a) The purpose of a hearing 

conducted under Section 9(c) of the Act 

is to determine if a question of 

representation exists. A question of 

representation exists if a proper petition 

has been filed concerning a unit 

appropriate for the purpose of collective 

bargaining or concerning a unit in 

which an individual or labor 

organization has been certified or is 

being currently recognized by the 

employer as the bargaining 

representative. Disputes concerning 

individuals’ eligibility to vote or 

inclusion in an appropriate unit 

ordinarily need not be litigated or 

resolved before an election is 

conducted. If, upon the record of the 

hearing, the Regional Director finds that 

a question of representation exists, the 

director shall direct an election to 

resolve the question. 

* * * * * 

■ 4. Amend § 102.66 by revising 

paragraphs (a), (c), and (h) to read as 

follows: 

§ 102.66 Introduction of evidence: rights of 

parties at hearing; preclusion; subpoenas; 

oral argument and briefs. 

(a) Rights of parties at hearing. Any 

party shall have the right to appear at 

any hearing in person, by counsel, or by 

other representative, to call, examine, 

and cross-examine witnesses, and to 

introduce into the record evidence of 

the significant facts that support the 

party’s contentions and are relevant to 

the existence of a question of 

representation. The Hearing Officer 

shall also have power to call, examine, 

and cross-examine witnesses and to 

introduce into the record documentary 

and other evidence. Witnesses shall be 

examined orally under oath. The rules 

of evidence prevailing in courts of law 

or equity shall not be controlling. 

Stipulations of fact may be introduced 

in evidence with respect to any issue. 

* * * * * 

(c) Offers of proof. The Regional 

Director shall direct the Hearing Officer 

concerning the issues to be litigated at 

the hearing. The Hearing Officer may 

solicit offers of proof from the parties or 

their counsel as to any or all such 

issues. Offers of proof shall take the 

form of a written statement or an oral 

statement on the record identifying each 

witness the party would call to testify 

concerning the issue and summarizing 

each witness’s testimony. If the Regional 

Director determines that the evidence 

described in an offer of proof is 

insufficient to sustain the proponent’s 

position, the evidence shall not be 

received. 

* * * * * 

(h) Oral argument and briefs. Any 

party shall be entitled, upon request, to 

a reasonable period at the close of the 

hearing for oral argument, which shall 

be included in the stenographic report 

of the hearing. Post-hearing briefs shall 

be filed only upon special permission of 

the Regional Director and within the 

time and addressing the subjects 

permitted by the Regional Director. 

Copies of the brief shall be served on all 

other parties to the proceeding and a 

statement of such service shall be filed 

with the Regional Director together with 

the brief. No reply brief may be filed 

except upon special permission of the 

Regional Director. 

* * * * * 

■ 5. Amend § 102.67 by revising 

paragraph (b) to read as follows: 

§ 102.67 Proceedings before the Regional 

Director; further hearing; action by the 

Regional Director; appeals from actions of 

the Regional Director; statement in 

opposition; requests for extraordinary 

relief; Notice of Election; voter list. 

* * * * * 

(b) Directions of elections. If the 

Regional Director directs an election, 

the direction ordinarily will specify the 

type, date(s), time(s), and location(s) of 

the election and the eligibility period. 

The Regional Director shall schedule the 

election for the earliest date practicable 

consistent with these Rules. The 

Regional Director shall transmit the 

direction of election to the parties and 

their designated representatives by 

email, facsimile, or by overnight mail (if 

neither an email address nor facsimile 

number was provided). The Regional 

Director shall also transmit the Board’s 

Notice of Election to the parties and 

their designated representatives by 

email, facsimile, or by overnight mail (if 

neither an email address nor facsimile 

number was provided), and it will 

ordinarily be transmitted 

simultaneously with the direction of 

election. If the direction of election 

provides for individuals to vote subject 

to challenge because their eligibility has 

not been determined, the Notice of 

Election shall so state, and shall advise 

employees that the individuals are 

neither included in, nor excluded from, 

the bargaining unit, inasmuch as they 

have been permitted to vote subject to 

challenge. The election notice shall 

further advise employees that the 

eligibility or inclusion of the 

individuals will be resolved, if 

necessary, following the election. 

* * * * * 

■ 6. Amend § 102.69 by revising 

paragraph (c)(1)(iii) to read as follows: 

§ 102.69 Election procedure; tally of 

ballots; objections; certification by the 

Regional Director; hearings; Hearing Officer 

reports on objections and challenges; 

exceptions to Hearing Officer reports; 

Regional Director decisions on objections 

and challenges. 

* * * * * 

(c) * * * (1) * * * 

(iii) Hearings; Hearing Officer reports; 

exceptions to Regional Director. The 


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hearing on objections and challenges 

shall continue from day to day until 

completed unless the Regional Director 

concludes that extraordinary 

circumstances warrant otherwise. Any 

hearing pursuant to this section shall be 

conducted in accordance with the 

provisions of §§ 102.64, 102.65, and 

102.66, insofar as applicable. Any party 

shall have the right to appear at the 

hearing in person, by counsel, or by 

other representative, to call, examine, 

and cross-examine witnesses, and to 

introduce into the record evidence of 

the significant facts that support the 

party’s contentions and are relevant to 

the objections and determinative 

challenges that are the subject of the 

hearing. The Hearing Officer may rule 

on offers of proof. Post-hearing briefs 

shall be filed only upon special 

permission of the Hearing Officer and 

within the time and addressing the 

subjects permitted by the Hearing 

Officer. Upon the close of such hearing, 

the Hearing Officer shall prepare and 

cause to be served on the parties a 

report resolving questions of credibility 

and containing findings of fact and 

recommendations as to the disposition 

of the issues. Any party may, within 10 

business days from the date of issuance 

of such report, file with the Regional 

Director an original and one copy of 

exceptions to such report, with 

supporting brief if desired. A copy of 

such exceptions, together with a copy of 

any brief filed, shall immediately be 

served on the other parties and a 

statement of service filed with the 

Regional Director. Within 5 business 

days from the last date on which 

exceptions and any supporting brief 

may be filed, or such further time as the 

Regional Director may allow, a party 

opposing the exceptions may file an 

answering brief with the Regional 

Director. An original and one copy shall 

be submitted. A copy of such answering 

brief shall immediately be served on the 

other parties and a statement of service 

filed with the Regional Director. Extra 

copies of electronically-filed papers 

need not be filed. The Regional Director 

shall thereupon decide the matter upon 

the record or make other disposition of 

the case. If no exceptions are filed to 

such report, the Regional Director, upon 

the expiration of the period for filing 

such exceptions, may decide the matter 

forthwith upon the record or may make 

other disposition of the case. 

* * * * * 

Dated: August 18, 2023. 

Roxanne L. Rothschild, 

Executive Secretary. 

[FR Doc. 2023–18129 Filed 8–24–23; 8:45 am] 

BILLING CODE 7545–01–P 

DEPARTMENT OF THE TREASURY 

31 CFR Part 515 

Cuban Assets Control Regulations 

CFR Correction 

This rule is being published by the 

Office of the Federal Register to correct 

an editorial or technical error that 

appeared in the most recent annual 

revision of the Code of Federal 

Regulations. 

■ In Title 31 of the Code of Federal 

Regulations, Part 500 to End, revised as 

of July 1, 2022, in section 515.570, in 

paragraph (d), remove ‘‘§ 515.565(d)’’ in 

both places where it appears and add in 

its place ‘‘§ 515.565(f)’’. 

[FR Doc. 2023–18455 Filed 8–24–23; 8:45 am] 

BILLING CODE 0099–10–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 100 

[Docket No. USCG–2023–0682] 

Special Local Regulation; Olympia 

Harbor Days Tug Boat Races, Budd 

Inlet, WA 

AGENCY: Coast Guard, Department of 

Homeland Security (DHS). 

ACTION: Notification of enforcement of 

regulation. 

SUMMARY: The Coast Guard will enforce 

special local regulations for the Olympia 

Harbor Days Tug Boat Races, Budd Inlet, 

WA, from 11 a.m. until 4 p.m. on 

September 2, 2023. This action is 

necessary to prevent injury and to 

protect life and property of the maritime 

public from the hazards associated with 

the tug boat races. During the 

enforcement periods, the operator of any 

vessel in the regulated area must 

comply with directions from the Patrol 

Commander or any Official Patrol 

displaying a Coast Guard ensign. 

DATES: The regulations in 33 CFR 

100.1309 will be enforced from 11 a.m. 

until 4 p.m. on September 2, 2023. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this 

notification of enforcement, call or 

email Lieutenant Peter McAndrew, 

Sector Puget Sound Waterways 

Management Division, U.S. Coast 

Guard; telephone 206–217–6045, email 

SectorPugetSoundWWM@uscg.mil. 

SUPPLEMENTARY INFORMATION: The Coast 

Guard will enforce special local 

regulations in 33 CFR 100.1309 for the 

Olympia Harbor Days Tug Boat Races, 

Budd Inlet, WA, regulated area from 11 

a.m. until 4 p.m. on September 2, 2023. 

This action is being taken to provide for 

the safety of life on navigable waterways 

during this event. District Thirteen 

regulation 33 CFR 100.1309(a) specifies 

the location of the regulated area which 

encompasses approximately 2 nautical 

miles of the navigable waters in Budd 

Inlet. During the enforcement periods, if 

you are the operator of a vessel in the 

regulated area you must comply with 

directions from the Patrol Commander 

or any Official Patrol displaying a Coast 

Guard ensign. All persons or vessels 

who desire to enter the race area while 

it is enforced must obtain permission 

from the on-scene patrol craft on VHF– 

FM channel 16. 

In addition to this notification of 

enforcement in the Federal Register, the 

Coast Guard will provide notification of 

this enforcement period via the Local 

Notice to Mariners. If the Captain of the 

Port determines that the regulated area 

need not be enforced for the full 

duration stated in this notification, he 

may use a Broadcast Notice to Mariners 

to grant general permission to enter the 

regulated area. 

Dated: August 21, 2023. 

Y Moon, 

Captain, U.S. Coast Guard, Acting Captain 

of the Port, Sector Puget Sound. 

[FR Doc. 2023–18327 Filed 8–24–23; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2022–0891] 

RIN 1625–AA09 

Drawbridge Operation Regulation; Mill 

Neck Creek, Bayville, NY 

AGENCY: Coast Guard, Department of 

Homeland Security (DHS). 

ACTION: Temporary interim rule and 

request for comments. 

SUMMARY: The Coast Guard is 

temporarily modifying the operating 

schedule that governs the Bayville 

Highway Bridge across the Mill Neck 

Creek, mile 0.1, at Bayville, NY. This 

action is necessary to allow the bridge 

owner to complete the remaining 

replacements and repairs. 

DATES: This temporary interim rule is 

effective from August 25, 2023, through 

January 31, 2024. 


ddrumheller on DSK120RN23PROD with RULES1